Scottish Parliament, 5 July 2000

313 contributions from 48 members. The official report.

Introduction

Time for Reflection

David (None, Lothians)

We welcome to lead our time for reflection the Rev Dr Finlay Macdonald, the principal clerk to the General Assembly of the Church of Scotland.

Parliamentary Bureau Motions

David (None, Lothians)

Our first item of business is consideration of the following Parliamentary Bureau motions: S1M-1084, S1M-1089 and S1M-1090.

Motions moved,

That the Parliament agrees as an addition to the Business Motion agreed on 29 June 2000— Thursday 6 July 2000 after Executive Debate on Modernisation in the NHS, insert followed by Debate on Motion on Government Resources and Accounts Bill - UK Legislation, and after Continuation of Executive Debate on Modernisation in the NHS, insert:

followed by Standards Committee Motion on Relationships with MSPs followed by Motion on Political Parties, Elections and Referendums Bill - UK Legislation and delete, Motion on Government Resources and Accounts Bill - UK Legislation That the Parliament agrees under the Rule 2.2.7 that the meeting of Parliament on Wednesday, 5 July 2000 shall continue to 19:00.

That the Parliament agrees under Rule 11.2.4 that Decision Time on Wednesday, 5 July 2000 shall begin at 18:30.— [Mr McCabe.]

Motions agreed to.

Bail, Judicial Appointments etc (Scotland) Bill and National Parks (Scotland) Bill: Timetable

David (None, Lothians)

The next motion is S1M-1092, the timetabling motion relating to stage 3 of the Bail, Judicial Appointments etc (Scotland) Bill and of the National Parks (Scotland) Bill.

Tom McCabe (Labour, Hamilton South)

I reserve my position—if there are any questions, I will try to address them.

I move,

That the Parliament agrees that for Stage 3 of the Bail, Judicial Appointments etc. (Scotland) Bill and the National Parks (Scotland) Bill, debate on each part of the proceedings, if not previously brought to a conclusion, shall be brought to a conclusion at the following times (calculated from the time when Stage 3 of the Bail, Judicial Appointments etc. (Scotland) Bill begins) -

Bail, Judicial Appointments etc. (Scotland) Bill Group 1 to Group 4 - no later than 1 hour 15 minutes Group 5 - no later than 1 hour 45 minutes Group 6 to Group 10 - no later than 3 hours Motion to pass the Bill - no later than 3 hours 30 minutes

National Parks (Scotland) Bill

Michael Russell (Scottish National Party, South of Scotland)

I wish to speak against motion S1M-1092. This is the third time that I have opposed a timetabling motion in recent weeks, and I am mindful of what Mr McCabe said on those previous occasions.

When Mr McCabe moved a timetabling motion on Thursday last week, for stage 3 of the Education and Training (Scotland) Bill, he said:

"Timetabling motions—particularly the one on today's debate—are not about guillotining or restricting debate, but are the exact opposite. Having a timetabling motion with particular knives that come down at specific times ensures that specific sections of the bill are protected."

He went on to say:

"This motion is simply a timetabling motion that allows the chamber to know when the debate will finish. No specific sections are mentioned, and the whole time is open for debate on the amendments."

Mr McCabe spoke at 10.05 am last Thursday. After 10.45 am, the Presiding Officer said that time was so short that he

"would be grateful if opening speeches could be limited to four minutes and other speeches to three minutes."

Fifteen minutes later, after 11 am, he said:

"I apologise to two members who, for time reasons, I cannot call."

After 11.15 am, he told the chamber that he would have

"to conclude stage 3 by 11.30 or time will be taken off"

subsequent statements. Two minutes later, he was asking people

"to give bullet points only".—[Official Report, 29 June 2000; Vol 7, c 862-91.]

A minute after that, he was asking members whether they would mind waiving their rights to speak or respond.

Dennis Canavan (Independent, Falkirk West)

Disgraceful.

Michael Russell (Scottish National Party, South of Scotland)

Indeed, it was disgraceful. Mr Canavan is absolutely right. As he has worked out—and he is one of the sharper members in the chamber—what Mr McCabe said turned out not to be true, although I do not question his motivation for saying it.

In the previous week, Mr McCabe said:

"I emphasise that the purpose of a timetabling motion is not to restrict debate."—[Official Report, 21 June 2000; Vol 7, c 476.]

I accept that that is the purpose of motion S1M-1092, which we are debating now, and of the timetabling motion that we debated last week. However, such motions restrict debate. If I can cite five instances within one hour of a single debate, of when the person in the chair has to stop members speaking; to cut speakers out of the debate; to restrict time; to say to members that they should "give bullet points only"; and to tell ministers that they have no time to respond, then the timetabling motion is wrong and should not be agreed to.

I ask the Executive to think again about timetabling motions: using them as a matter of course has the effect—it might not be the purpose—of restricting debate in the chamber, and I hope that no member wishes that. I oppose the motion.

James (Conservative, Lothians)

We initially indicated that we would vote against the timetable motion, but since then, the Minister for Parliament has substantially extended the time limits. As he listened to our request on that matter, we will not oppose the timetable motion. [Interruption.]

David (None, Lothians)

Order.

James (Conservative, Lothians)

Scottish National Party members speak for themselves—they do not speak for Conservative members.

Our strong view is that the lateness of the marshalled list of amendments gives members of the Scottish Parliament inadequate time to study the detail of the changes proposed. That matter should be referred to the Procedures Committee. Decisions made by the Executive in haste and at the last moment can easily be repented at leisure.

David (None, Lothians)

If I may treat that as a point of order, I should like to say that I agree entirely with Lord James Douglas-Hamilton. We discussed that issue in the Parliamentary Bureau yesterday, and, in my view, the standing order does not allow enough time between the completion of the lodging and deletion of amendments, and the marshalling of lists and timetabling of motions. A letter on that subject is currently winging its way from me to the convener of the Procedures Committee, and I hope that the matter will be reviewed. Things are being far too rushed in the process.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

In following the usual double act, I want to make a couple of comments. Mr Russell referred to Mr McCabe's explanation at the end of the short debate last week; in fact, Mr McCabe seemed to go on for so long that I thought he was filibustering on his own timetabling motion. At one stage last week, he said that the motion was not a guillotine, and in the next breath he talked about a knife coming down. I have to say that I do not quite get the semantic distinction between a guillotine and a knife.

This week, we are considering the National Parks (Scotland) Bill, and Mike Rumbles has lodged some substantial technical amendments to clarify and correct points that were raised at stage 2. We are effectively to take it at face value that the technical problems from stage 2 will be rectified by those extremely technical amendments at stage 3. If we do not have the necessary time to debate those amendments, there is the risk that the Parliament will pass bad law.

My second comment is in response to Lord James Douglas-Hamilton's point that the Government has somehow has got over the problems by generously extending the timetable. As Mr McCabe would have it, the whole point of lodging a timetabling motion is to provide a guide for members and the chair on when different debates will be taken. However, if he has had to extend the timetable so much, it potentially ceases to be a realistic guide, because we might finish debates long before the times set down in the timetabling motion. I have to ask Mr McCabe again: why bother with the timetabling motion? Why can we not sit down and debate the amendments as they come up? We will get through them in good order; the Parliament is very sensible, and we have not had filibustering thus far. Let us get on with the debate and stop this nonsense with the timetable.

Furthermore, the danger with the timetable is that at some point, an Administration—certainly not this one—that wants to get something through quickly and to stifle debate will be in the habit of accepting timetabling motions willy-nilly. That is a bad thing for democracy.

Donald Gorrie (Liberal Democrat, Central Scotland)

I raised a question when today's business was put forward by Iain Smith on behalf of the Executive. Perhaps the issues should have been raised by some other members at that time.

I agree very much with Lord James Douglas-Hamilton's point that we must address the issue. Presiding Officer, I am very happy that you have written what will be—I am sure—a highly sensible letter to the Procedures Committee, which will reinforce my own feeble efforts in that direction. The committee has already discussed my paper on the timetabling of amendments.

As for today's business, I am advised that the Parliamentary Bureau has provided a reasonably generous allocation of time to debate what members have proposed in various amendments and to allow us to get the legislation through. As members have said, the bureau has misjudged the situation two out of the past three times. However, being a very long-suffering person, I am personally prepared to give the bureau the benefit of the doubt on this occasion.

That said, before we start debating legislation in the autumn, we must properly sort out the whole timetabling issue. It is madness to spend all this time on pre-legislative scrutiny and then to have a final sprint at the end when, as Alasdair Morgan pointed out, we might get some of the amendments wrong. As far as I am concerned, this is a yellow card to the Parliamentary Bureau.

Phil Gallie (Conservative, South of Scotland)

With respect to marshalled lists of amendments, I want to draw attention to the fact that, when stage 2 of the Bail, Judicial Appointments etc (Scotland) Bill was cleared on the Thursday, all amendments to the bill had to be lodged by the Friday evening to allow the production of the marshalled list, which, as has been acknowledged, is coming out too late. However, it is difficult to see how, with such a time scale, that situation can be improved, unless there is no time to lodge amendments.

With respect to guillotines, everyone in the chamber sympathises with Mike Russell's point. On today's business, there is no doubt that there has been movement, which should allow us to contain the business within a reasonable time scale. However, many of us identify with the principles that Mike Russell set out.

David (None, Lothians)

Does Mr McCabe wish to reply?

Tom McCabe (Labour, Hamilton South)

Briefly, Presiding Officer—members in the chamber are concerned about time, but they seem to spend inordinate amounts of time discussing the same thing every week.

In response to Mr Morgan, as a member of the SNP group, he should understand knives—just look at his back. The SNP group would do well to listen to Lord James Douglas-Hamilton's advice—the SNP speaks for itself, and not for other parties. That should be mentioned to Mr Sillars this morning when he holds his press conference with Mr Rifkind, although the SNP might not want to mention that.

Mr Russell seems to have changed his argument. A few weeks ago, he was happy with an overall end time for the debate. Now that argument has changed, so that members are not given notice of when the debate will end. The more some people complain about Westminster, the more they want to be the same as Westminster.

It is striking to note the arguments that are being put forward to try to defend a position that more and more simply reflects divisions within the SNP group. Mr Russell's arguments are becoming weaker and weaker. He now has to invoke the help of Mr Canavan—a good choice, I must say—but clearly he is losing the argument if he has to invoke the help of other members.

Dennis Canavan (Independent, Falkirk West)

Will the minister give way?

Tom McCabe (Labour, Hamilton South)

No, I will not. We are not wasting any more time.

Quite simply, the case has been made for a timetabling motion. I commend the motion.

David (None, Lothians)

The question is, that motion S1M-1092 be agreed to. Are we agreed?

David (None, Lothians)

There will be a division.

David (None, Lothians)

The result of the division is: For 63, Against 28, Abstentions 14.

Motion agreed to.

That the Parliament agrees that for Stage 3 of the Bail, Judicial Appointments etc. (Scotland) Bill and the National Parks (Scotland) Bill, debate on each part of the proceedings, if not previously brought to a conclusion, shall be brought to a conclusion at the following times (calculated from the time when Stage 3 of the Bail, Judicial Appointments etc. (Scotland) Bill begins) -

Bail, Judicial Appointments etc. (Scotland) Bill Group 1 to Group 4 - no later than 1 hour 15 minutes Group 5 - no later than 1 hour 45 minutes Group 6 to Group 10 - no later than 3 hours Motion to pass the Bill - no later than 3 hours 30 minutes

Bail, Judicial Appointments etc (Scotland) Bill: Stage 3

David (None, Lothians)

We come to stage 3 proceedings on the Bail, Judicial Appointments etc (Scotland) Bill. I will make the usual announcement about the procedures that will be followed. First, we will deal with amendments to the bill, and then move on to the debate on the question that the bill be passed. For the first part of the debate, members should have in their hands the bill—that is, SP Bill 17A, as amended at stage 2—the marshalled list, which contains all the amendments that I have selected for debate, and the groupings in which they will be debated.

Each amendment will be disposed of in turn. An amendment that has been moved may be withdrawn with the agreement of the members present. It is possible for members not to move amendments if they wish.

The electronic voting system will be used for divisions. We will allow an extended voting period of two minutes for the first division that occurs after each debate on a group of amendments.

I hope that, with that explanation, we can turn to the first grouping, which is amendment 13 on its own.

Phil Gallie (Conservative, South of Scotland)

This amendment seeks to retain section 26 of the Criminal Procedure (Scotland) Act 1995, which the bill seeks to repeal. Section 26 refers to circumstances in which bail cannot be allowed. Such circumstances would include situations in which an individual has previously been found guilty of attempted murder, culpable homicide, rape or attempted rape. We have already debated in this section the issue of whether someone charged with murder should automatically be stopped from having bail, as is currently the situation under the Criminal Procedure (Scotland) Act 1995.

Given the considerable rise in crimes of violence, if we relax the bail laws, we are taking a step too far. We are aware of numerous incidents of people committing serious offences while on bail. In one incident in the Ayr constituency, an individual lost his life at the hands of youths who were on bail and had been charged with acts of serious violence. In such circumstances, there should not be a discretionary factor for judges.

I should like to bring into the debate the argument about mandatory sentences. If judges must have total discretion on bail, somewhere along the line, compliance with the European convention on human rights will suggest that judges should have discretion on every form of sentencing. On that basis, mandatory life sentences for murder could disappear. I should like to hear the minister's views on that.

In the main, section 26 has acted well to prevent dangerous people from being let loose on our streets; it is well worded, it has been set in our law for the past five years and it is probably built on principles established well before that. To my knowledge, it has not been challenged in any way to date. I urge the chamber to accept the amendment, which allows section 26 of the 1995 act to remain.

I move amendment 13.

Roseanna Cunningham (Scottish National Party, Perth)

I have a sense of déjà-vu about the debate, as the Justice and Home Affairs Committee dealt with stage 2 of the bill only last week. I suspect that at exactly this time last Wednesday morning, we were having almost exactly the same debate. I do not want to go over all the arguments that took place then. However, members should be aware that to agree to the amendment would effectively negate the whole point of part 1 of the bill.

We had clear evidence earlier in our proceedings from Professor Gane, among others, that not to legislate on bail to bring our provisions into line with the ECHR would inevitably lead to a challenge, which would inevitably be successful. I urge Phil Gallie to accept what almost everybody has said, which is that once we remove the restrictions, it is highly unlikely that people will get bail who would not previously have got it and that anybody will be in a different position.

All we are asking Phil Gallie, the Conservatives and everybody to accept is that if we do not make that change, there will be a challenge. The challenge is likely to come at a point of maximum emotional impact, when people are incapable of being objective. It is far better to have this discussion when we can be objective.

For those reasons, the Scottish National Party will not support the amendment.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

I do not want to repeat everything that Roseanna Cunningham said, other than to emphasise that the Law Society of Scotland made it clear to the Justice and Home Affairs Committee that the changes that the bill will bring about are necessary for ECHR compliance.

I am bemused that Phil Gallie suggested at stage 2 that we remove the whole of section 3, but is now trying to remove just one subsection. I cannot understand how that could be done, because one of the provisions would remain.

The problem with amendment 13—exactly as Roseanna Cunningham articulated—is that the whole purpose of part 1 of the bill would, in effect, be negated if the amendment were passed.

The Liberal Democrats accept that the common-law provisions will assist the process, because they should restrict the number of those who are released on bail. Much will rely on the sheriff's discretion in a number of circumstances. We are clear that the change is necessary; it is not dangerous. If the change were not made, that would precipitate very quickly an ECHR challenge, so we are minded not to support the amendment.

Angus MacKay (Labour, Edinburgh South)

Amendment 13 relates to the provisions in section 26 of the Criminal Procedure (Scotland) Act 1995, which provide for circumstances in which bail is not available and form part of the provisions known as the bail exclusions. The Executive has proposed that those provisions be repealed. Amendment 13, as Roseanna Cunningham said, would retain certain key elements of the provisions—that is, the exclusions in section 26 that relate to persons who are accused of certain serious offences in circumstances in which they have a previous conviction for similar offences. I note that Mr Gallie now appears content to accept that persons who are accused of murder or treason should not be denied the opportunity to have their case for bail considered at their first appearance.

The issue was considered carefully by the Justice and Home Affairs Committee, as Roseanna Cunningham said, both during evidence taking and at stage 2. As the committee noted in its report, it is agreed on all sides that the recent Strasbourg judgments do not leave any room for doubt that all the existing bail exclusions are incompatible with the ECHR and must therefore be repealed. That is the purpose of section 3. Removing section 3(2), as Phil Gallie is attempting to do, would mean that our law on bail would remain incompatible with convention rights. From 2 October, when the Human Rights Act 1998 comes into force, a person who was refused bail under legislation that provided for bail exclusions would be able to challenge the legislation on ECHR grounds. I think that Phil Gallie is aware of that. I have no doubt that the court would make a declaration that the provisions in question were incompatible with the ECHR, which would require us to amend the same legislation in any event.

In those circumstances, there is simply no option, it appears, but to legislate now to remove the incompatibility before it becomes challengeable under the Human Rights Act 1998. I emphasise that if we do not legislate now, it is possible that the individuals would have to be released and could not be detained pending their trial. I think that Mr Gallie would be very concerned about that.

I also stress again, as I did at stage 2, that the abolition of the bail exclusions does not mean that those who are accused of serious sexual offences, or violent offences, will have a right to—or even an expectation of—bail. The common law in Scotland contains clear guidelines on the criteria that the courts must apply in deciding whether to grant bail. Those criteria include considerations of public safety and the accused's previous convictions, so I believe that the courts would not release an accused person on bail if he or she presented a serious risk to the safety of the public.

I should also point out that the Crown has a right of appeal against a decision to admit an accused person to bail, just as the accused may appeal against the decision to refuse bail. If a person who is released on bail commits an offence, or breaches their conditions of bail, or if there are reasonable grounds for thinking that they have broken or are likely to break a bail condition, they are liable to be rearrested and brought back before the court, which may then revoke bail or impose fresh conditions.

It is clear beyond doubt that our existing legislation is in breach of the ECHR. Frankly, it would be irresponsible not to remove the incompatibilities before they are challenged, as they surely would be as soon as the Human Rights Act 1998 comes into force.

I have said before—and it is worth putting on record again—that when the legislation was passed at Westminster, the Conservatives did not vote against the second or third reading of the Human Rights Bill. In fact, they wished it well. I am glad that they did—I am glad that all parties in the chamber signed up to it—because it is important legislation that guarantees fundamental human rights.

Having signed up for that legislation, we must live with the consequences and the advantages. One consequence is that we must tidy up our law to ensure that bail applications are heard properly and safely, but we must ensure that our law is not challengeable under the ECHR.

On that basis, I ask Phil Gallie to withdraw amendment 13.

Phil Gallie (Conservative, South of Scotland)

Euan Robson and the minister referred to the amendment on murder that I lodged last week. Had I lodged that amendment again for today's debate, I am quite sure that the Presiding Officer would have knocked it off the marshalled list as it has already been debated. Last week, I had strong feelings about section 26 of the Criminal Procedure (Scotland) Act 1995, but I deliberately did not address that matter in committee so that I could bring it to the floor of the chamber.

Many members will not recognise what the bail element of the Bail, Judicial Appointments etc (Scotland) Bill entails. It is only right that these issues be brought before the chamber so that the implications of that element can be picked up.

Malcolm Chisholm (Labour, Edinburgh North and Leith)

Phil Gallie will know from the stage 1 debate that I would like several measures to be implemented in order to strengthen the rights of victims in relation to bail; but amendment 13 is not one of those measures.

Will Phil Gallie tell members whether it is now a Conservative tactic to propose a series of measures that are clearly and flagrantly in breach of the ECHR as part of that party's anti-European agenda?

Phil Gallie (Conservative, South of Scotland)

If, as Malcolm Chisholm suggests, I thought that the lifting of bail restrictions was a clear requirement of the convention, perhaps I would not have lodged amendment 13—but I suspect that that requirement has not been tested and that it remains a question in the minds of those who have considered the issue. People have opinions on the issue, but it has not been challenged. To my mind, it is not clear that a mandatory refusal of bail would contravene the European convention on human rights.

I see the minister shake his head, but he has never used the word "certainty" and he has never said, "This is a contravention." He has always said, "It would seem to me," "I expect," or, "It is my opinion." He has not used the word "guarantee." It might bring us some comfort if he were to use it today. However, at this point, it appears that the system is being watered down and it is my intention to pursue amendment 13.

The minister referred again to the Conservatives at Westminster. Just as we are not part of the SNP group, the Scottish Conservative group in the Scottish Parliament stands alone. We have our own views. On that basis, I will press my amendment.

Patricia Ferguson (Labour, Glasgow Maryhill)

The question is, that amendment 13, in the name of Phil Gallie, be agreed to. Are we agreed?

Patricia Ferguson (Labour, Glasgow Maryhill)

There will be a division.

Patricia Ferguson (Labour, Glasgow Maryhill)

The result of the division is: For 16, Against 90, Abstentions 0.

Amendment 13 disagreed to.

Patricia Ferguson (Labour, Glasgow Maryhill)

I call Phil Gallie to speak to and move amendment 14.

Phil Gallie (Conservative, South of Scotland)

Perhaps this amendment will receive a bit more sympathy because it is, quite simply, about democracy and the powers of the Scottish Parliament.

Under section 4A, responsibility for filling judicial vacancies lies totally in the hands of Scottish ministers. It seems to me that such appointments are the kind of issue that it would have been custom and practice to bring to the attention of the Parliament in the form of an order. I therefore ask the minister to recognise that amendment 14 relates to democracy and that any change in the number of people serving in the judiciary is of interest to everyone who serves in the Parliament.

There are all kinds of reasons for not filling vacancies. One, which would be abhorrent to most members, is purely financial. Surely that would not be acceptable. Not all Administrations will be as generous as this one claims to be. A future Administration might want the justice and home affairs budget to be a bit tighter, although that is hard to believe given current circumstances. I am sure that members would not want the judiciary to be depleted on purely financial grounds.

Other reasons would make a reduction justifiable. If the pressure on courts were reduced, it might be reasonable to reduce numbers. A reduction in external activities such as the need for a court in the Netherlands and for a rail accident inquiry might allow for some reduction in the judiciary. It seems right that the Parliament should be asked for its opinion. Laying a negative instrument before Parliament is the way to do it.

I move amendment 14.

Michael Matheson (Scottish National Party, Central Scotland)

I congratulate Phil Gallie on his conversion to open government and to the Scottish Parliament's having greater powers of scrutiny.

Chapter A1 was amended by the Executive at stage 2. Having considered the proposed subsection (8), I have sympathy with Phil Gallie's comments about the role Parliament could play in scrutinising the number of senior judges in the Inner House. The current Executive may have made it clear that it has no intention of changing the number of senior judges, but I am concerned that that could change further down the road.

It is appropriate to consider any decision that would lead to a reduction in the number of senior judges in the Inner House, because it would give us an opportunity to scrutinise that decision. I support amendment 14.

Angus MacKay (Labour, Edinburgh South)

If Phil Gallie is to be congratulated on his conversion to open government, perhaps Michael Matheson is to be congratulated on mentoring that change in Phil Gallie's political judgment. Michael confessed recently to working on Phil whenever possible to move his political posture towards the left.

Phil Gallie remarked on the Administration's commitment to the justice and home affairs budget. He will be aware that the baseline budget of the justice and home affairs department is increasing year on year in real terms; that the prisons budget is increasing; that—

David McLetchie (Conservative, Lothians)

Will the minister give way?

Angus MacKay (Labour, Edinburgh South)

No.

David McLetchie (Conservative, Lothians)

Exactly.

Angus MacKay (Labour, Edinburgh South)

And that police numbers are set to hit record levels. If we do not hit record levels it will only be because the highest level of police officers in Scotland was under Labour in 1997, so we will occupy first and second place.

David McLetchie (Conservative, Lothians)

What a pack of lies.

Angus MacKay (Labour, Edinburgh South)

I am glad Mr McLetchie enjoyed that contribution so much. Perhaps he could prevail on Mr Gallie to stick to the terms of the bill—if he does not want to be provoked during the rest of the morning.

Amendment 14 would remove a requirement on ministers to satisfy themselves that they should not approve the filling of a vacancy in the Inner House unless they are clear that that would be justified on grounds of the work load of the Inner House. It seems odd for the Opposition to attempt to relieve ministers of that responsibility and I invite members to reject the amendment on that ground alone.

However, amendment 14 seeks to require ministers to bring before the Parliament the order under the new subsection (2D) formally to reduce the number of Inner House judges whenever ministers refuse a request from the Lord President that a vacancy should be filled. It is unnecessary and undesirable to require ministers to exercise their subsection (2D) power on any occasion when they refuse immediately to fill a vacancy.

The Court of Session Act 1988 envisages that the Inner House will still run even if there is an outstanding vacancy. It will not necessarily be appropriate to reduce immediately the number of Inner House judges if Scottish ministers have refused to fill a vacancy. Ministers will want to monitor the situation to see whether the downturn is likely to be a long-term trend that would justify reducing the number of judges through a subsection (2D) order so that no vacancy exists. We would not want to be required to reduce the number of Inner House judges only to find that we need to make a further order shortly afterwards to reinstate the original position. For sensible administration, we will want to ensure that the number of Inner House judges specified in the subsection (2D) order is based on an accurate assessment of the likely amount of business before the Inner House.

We would not expect the Inner House to run with a vacancy in the long term. As soon as it becomes apparent that there is unlikely to be a case for filling the vacancy, we would expect to make an appropriate order under subsection (2D). Mr Gallie's amendment would remove the flexibility that will enable ministers to monitor the situation before making the reduction order. The Lord President is content with the Executive's proposals and I invite members to reject amendment 14 and to approve the provisions on Inner House judges as currently drafted.

Phil Gallie (Conservative, South of Scotland)

I thank Mr Matheson for his support. The issue was well worth debating and has led to the minister explaining his intentions and that he has concentrated on the short term and flexibility. We can have some sympathy for that. He has stated on the record what I see as guarantees in the longer term. On that basis, I ask to withdraw the amendment.

Amendment 14, by agreement, withdrawn.

Patricia Ferguson (Labour, Glasgow Maryhill)

We now move to amendment 1, which is grouped with amendment 2.

Angus MacKay (Labour, Edinburgh South)

For brevity, I will confine myself to saying that the Executive has lodged minor amendments 1 and 2—which tidy up the wording of the section—following points that were made during stage 2.

I move amendment 1.

Amendment 1 agreed to.

Amendment 2 moved—[Angus MacKay]—and agreed to.

Patricia Ferguson (Labour, Glasgow Maryhill)

We now come to amendment 16.

Phil Gallie (Conservative, South of Scotland)

Many of the arguments that I used with respect to democracy and the standing of the Scottish Parliament relate to amendment 16. Although I accepted the minister's comments on earlier amendments, I mentioned the long-term and short-term issues and pointed out that it was reasonable—given the short-term aspiration to sustain flexibility—to withdraw amendment 14.

Amendment 16 relates to remuneration of part-time sheriffs. There is nothing short-term about that. Ministers make decisions on the level of remuneration in many other areas and, in such cases, it is traditional to have a negative instrument put before the chamber. It seems to me that the matter to which amendment 16 relates is not different from such cases. I lodged the amendment on the basis that agreement to it would refer ministers' decisions to the chamber. The minister might argue that the matter is already covered under new section 11D. If he can assure me on that point, I will be reasonably happy. I would, however, appreciate clarification on the matter.

I move amendment 16.

Roseanna Cunningham (Scottish National Party, Perth)

I do not want to make a speech, but I would like to ask a question for clarification. Despite the number of legally qualified people on the SNP benches, I am not certain about the current situation as it relates to full-time sheriffs and I am not sure whether the level of remuneration of full-time sheriffs is contained in orders. I appreciate that Mr Gallie assumes that that is the case, but it would be helpful to establish whether it is. There is an argument for keeping part-time appointments on the same basis as full-time appointments where remuneration is concerned. I would appreciate the minister's addressing directly the issue of equivalence. [Interruption.]

Angus MacKay (Labour, Edinburgh South)

Gordon Jackson wonders whether I am going to answer that question. I am going to try. If Mr Jackson feels that I am not being sufficiently informative, I will give way to him.

If agreed to, amendment 16 would remove ministers' discretion to pay part-time sheriffs such remuneration and allowances as ministers had determined. That would also require that fees were specified in a statutory instrument, which would have to be laid in draft before and approved by Parliament. The cost of fees and allowances to part-time sheriffs will be met through the justice programme, for which the Minister for Justice is accountable to Parliament.

The Executive's view is that it is appropriate that the minister should have discretion to decide those matters. We consider that it would be unnecessarily restrictive to require that fees and allowances be specified in an affirmative statutory instrument. It is normal practice for the fees and allowances that are payable to public appointees to be determined by ministers without a requirement for another statutory instrument.

I announced to Parliament in the stage 1 debate that the proposed daily rate for a part-time sheriff would be £438. I see that Lyndsay McIntosh is grimacing. That is the same daily rate as would be payable to a permanent sheriff. I see that Bill Aitken is licking his lips. In addition, the part-time sheriff may claim travel and subsistence expenses on the same basis as a permanent sheriff. I invite members to agree that those are not ungenerous provisions and that the Executive is certainly not seeking to get justice on the cheap. I assure members that there will be substantial interest among the former temporary sheriffs.

Roseanna Cunningham (Scottish National Party, Perth)

I am not sure that this is a huge issue of principle, but I would like the minister to address a specific question. What happens at present with the appointment of permanent sheriffs? Are their annual incomes determined by order? If they are, there ought to be the same arrangement for part-time sheriffs; if they are not, I would accept that those of part-time sheriffs should not be either.

Gordon Jackson (Labour, Glasgow Govan)

rose—

Roseanna Cunningham (Scottish National Party, Perth)

What is the current position? Perhaps Mr Jackson has the answer.

Angus MacKay (Labour, Edinburgh South)

Heroically, Roseanna Cunningham kept talking until her answer arrived . I give way to Gordon Jackson.

Gordon Jackson (Labour, Glasgow Govan)

I am sorry to appear rude to the minister, but I may know the answer to the question. I may be wrong, but my understanding is that full-time sheriffs have their salaries linked to a particular level of judge in England, through the top people's salary thing. [Laughter.] Their remuneration is not fixed by the Scottish ministers or the Scottish Executive in the way that is proposed for part-time sheriffs. They are paid in a completely different way. The salaries of full-time sheriffs are linked to those of either Crown court or county court judges through the top people's salaries review board.

Angus MacKay (Labour, Edinburgh South)

I am grateful to Gordon Jackson for keeping the chamber happy. My understanding is that full-time sheriffs' salaries are reserved to the UK Parliament thing— [Laughter.] I understand that recommendations are made to the Prime Minister and that the Cabinet decides salary levels. That is not done through statutory instrument. I think that that probably addresses the point that Roseanna Cunningham raised.

The point I was trying to make before I gave way to Roseanna Cunningham was that I am fairly clear that there will be substantial interest among former temporary sheriffs and, we hope, many others, in trying to acquire part-time commissions on these terms. At stage 1, I said that we hope to broaden the range of backgrounds of the individuals who participate in the capacity of part-time sheriff. I said that it is important, when awarding commissions, that appointees reflect all backgrounds and experiences in Scottish society. We therefore had to ensure that the terms were sufficiently generous to encourage individuals of all backgrounds to come forward. I am sure that that will be the case.

Because ministers are fully accountable for the expenditure, members should be comfortable in agreeing that the Executive has tried to establish payment arrangements on a fair and professional basis, especially as the part-time sheriffs have an equivalence with full-time sheriffs. Ministers should be left to make decisions on those matters in the light of their overall responsibility for expenditure. I invite members to reject amendment 16.

Phil Gallie (Conservative, South of Scotland)

This has been an interesting debate. The conclusion seems to be that the salaries are linked—maybe. The minister's comment about full-time sheriffs' salaries being set under reserved powers was interesting. It may have shed some light on this Parliament because, until now, that fact had not been appreciated, either by the minister or by the rest of us, except perhaps by those who have been very involved in the issue.

It seems that the salaries of part-time sheriffs will be at the discretion of the minister. I can foresee a time when a part-time sheriffs' union, affiliated to the Scottish Trades Union Congress, will come knocking on the minister's door. I am tempted to stick with my amendment just to prevent that. However, the minister has answered Roseanna Cunningham's justifiable questions and given us assurances. I therefore seek to withdraw the amendment.

Amendment 16, by agreement, withdrawn.

Patricia Ferguson (Labour, Glasgow Maryhill)

I now call Roseanna Cunningham to speak to and move amendment 17, which is grouped with amendments 18, 3, 19, 20 and 21.

Roseanna Cunningham (Scottish National Party, Perth)

It is always a challenge, particularly in the Scottish Parliament, to come up with things at stage 3 that have not already been digested, pre-digested and probably regurgitated long before. However, the three amendments in my name in this group cover three issues that we did not debate extensively at stage 2.

Although amendment 17 is the lead amendment, it is perhaps not the most important in the group. It is a fairly straightforward amendment whose reason for existence will be absolutely clear to all members. It seeks to include in the bill a specific notice period for the resignation of part-time sheriffs who choose to go of their own accord. It appears that, under the bill as it is currently drafted, sheriffs could sit on the bench one morning, phone up in the afternoon and say that they are resigning and not sit the next day. I am not sure whether we would want to allow that.

I am not suggesting for a moment that that is likely to happen very often. I am sure that part-time sheriffs who choose to resign will, in most cases, want to serve out some period of notice, if for no other reason than to ensure that their colleagues and the sheriff principal in their area are not woefully disadvantaged. On the other hand, the bill does not state a period of notice, which means that there is nothing to stop somebody resigning at a moment's notice and leaving. That could be rectified by including a minimum notice period.

Amendment 19 is rather more substantial and is a little more important in the broader scheme of the bill's provisions for part-time sheriffs. Concerns have already been expressed about the fact that, as it stands, section 6 allows a sheriff principal to recommend to the Scottish ministers that a part-time sheriff should not be reappointed after the expiry of a five-year term of office. We had some discussion about that at stage 2.

I do not want to quote extensively what the minister said but, as I recall, his comments were along these lines. He expected that the sheriff principal in question would draw to ministers' attention matters of some importance, and that it would not simply be an issue of somebody's face not fitting. He said that he expected that that would be the basis on which such a recommendation would be made by a sheriff principal.

Of course, the bill does not actually say that, and anybody who has dealt with law over a long period of time will know that, whatever was intended, the law of unintended consequences can sometimes come into play. This could be one of the areas in which there may be unintended consequences of not making clear in the bill what the level of reasoning should be for such a recommendation.

It is fair to say that the only foreseeable reason for such a recommendation would be unfitness for office by reason of inability, neglect of duty or misbehaviour. It is hard to imagine what other reasons the sheriff principal could have for making such a recommendation, but there are already provisions for the removal of part-time sheriffs in those circumstances.

I am concerned that, under section 6, the sheriff principal's recommendation could become a way to fast-track the removal of certain part-time sheriffs without triggering any of the tribunal procedures that are provided for in the bill. In effect, a sheriff principal or ministers may decide that ridding themselves of a particular sheriff mid-term might be messy and difficult and that it would be easier to wait until the five-year term is up. The sheriff principal could then recommend that the appointment not be renewed and the situation could be resolved without fuss or mess. The problem with that is that it appears to create the potential for fast-track firing, without the protections that the tribunal provides.

We are introducing new procedures—procedures that are required to be compliant with the ECHR—to reform a situation that we have had to accept is no longer appropriate. I would like to hear the minister deal with the issue that I have raised, as I believe that it is a genuine question that needs to be addressed.

Amendment 20 is fairly straightforward. It would enable the Lord President, as well as the Scottish ministers, to initiate an investigation. We think that that is a sensible line, as the Lord President is in a position to know whether such an investigation may be required. It seems entirely appropriate that he, as well as ministers, should have the power to initiate an investigation. I would be interested to hear what the minister has to say on that point.

I move amendment 17.

Patricia Ferguson (Labour, Glasgow Maryhill)

I call Phil Gallie to speak to amendments 18 and 21.

Phil Gallie (Conservative, South of Scotland)

With your indulgence, Presiding Officer, I will go through the whole group of amendments.

We have much sympathy with amendment 17. A great deal has been said about the need to give part-time sheriffs a reasonable time scale within which to operate—basically, to give them a five-year contract. It is reasonable to expect that that contract should have time limits at both ends. Adding a three-month notice period would be a worthwhile amendment to the bill.

I will not be moving amendment 18.

I disagree with Roseanna Cunningham about amendment 19 and point her to amendment 21, which would give the part-time sheriff who has been named as inappropriate by the sheriff principal the right to provide information in his defence. It is important that the sheriff principal's views of the people who serve in his sheriffdom should be taken into account, but it is also right that any individual who has been charged by the sheriff principal should have the right to respond to that.

Roseanna Cunningham (Scottish National Party, Perth)

I am not entirely sure why Phil Gallie thinks that the two amendments are mutually exclusive. Amendment 21 relates directly to the tribunal procedure, whereas amendment 19 relates to an entirely different provision, under which the tribunal procedure would not be triggered and would, in effect, be avoided. That is the issue that I sought to address in my amendment. I do not think that the two amendments are at all contradictory.

Phil Gallie (Conservative, South of Scotland)

Amendment 19 relates to section 11C(2) and would appear to create a situation in which the sheriff principal is cut out of the process. Under section 11C(4)(b), the issue appears to be redressed at a later stage if the tribunal is pulled into action. If my interpretation of that is wrong, the minister will no doubt correct me. It is important that the sheriff principal establishes a view. However, I support Roseanna Cunningham on amendment 17.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

Amendment 17 is a de minimis matter. I am not sure that the minister will be able to deal with it in terms of existing guidelines or contracts of employment for sheriffs, but I am agnostic on the necessity for it.

Amendment 19 is interesting. I read section 11B(5) entirely differently. It states that the part-time sheriff

"may be reappointed and shall be entitled to be reappointed unless—".

I did not understand that to mean that, if the sheriff principal made a recommendation against reappointment, that would preclude reappointment. I understood it to mean that there would be no automatic entitlement to reappointment. It will be interesting to hear what the minister has to say about that, because one can read that section in two ways. If there is ambiguity, it must be dealt with.

On amendment 20, there is some incongruity in adding to section 11C(2) the words

"the Lord President of the Court of Session"

when the Lord President of the Court of Session appoints the tribunal. Although the issue is not vital, I think that the amendment could lead to an accusation of a conflict of interest.

I understand the motivation behind amendment 21. I accept what it is saying, except that I cannot see why there would be a tribunal if the part-time sheriff could not be heard. I believe that what is proposed in amendment 21 is implicit in the fact that the tribunal is established.

The Liberal Democrats are not minded to support any of those amendments, although I will be interested to hear the minister's remarks on amendment 19, because I think that there may be some ambiguity in section 11B(5).

Gordon Jackson (Labour, Glasgow Govan)

I will deal with Roseanna Cunningham's amendments.

I do not understand the point about the three months' notice, because the part-time sheriff does not need to sit—he is under no contract and is paid only for the days on which he sits, so if he says, "I am not sitting after today," he will not sit after today. Even if he gives three months' notice, he would not be obliged to sit at any time during those three months. All that the amendment would do is tie up the system for three months.

For example—although this may be ridiculous—let us imagine that 10 part-time sheriffs said that they would not sit after today. They would not sit for those three months because no power on earth can make them sit. However, because they were technically on three months' notice, another 10 could not be appointed and the complement could not be filled. I do not see the point of making people who are not obliged to do anything give notice.

Phil Gallie (Conservative, South of Scotland)

Gordon Jackson's argument is a good one. Is a part-time sheriff who is part way through a case, which is perhaps going to extend over three or four weeks, in the position to pull out of that case at any time at his discretion? That seems to be the point that Roseanna Cunningham is trying to cover.

Gordon Jackson (Labour, Glasgow Govan)

In a peculiar sort of way, the sheriff could do that, but professionally he would be finished. It would be professionally irresponsible for him to do that and any professional organisation would throw him out. If a sheriff chose not to finish a case that he was halfway through and decided never to be a lawyer again but to live in the Bahamas instead, there is no earthly power to stop him. One would hope that he would not decide to do that, but there is no contract that would be able to force him not to.

Euan Robson is right about the sheriff principal. The bill does not mean that if the sheriff principal objects the person cannot be reappointed; it means that he does not have to be reappointed. It moves him from the "shall" category to the "may" category. While I share Roseanna Cunningham's worries about sheriffs principal and the arbitrary nature of the situation, who is better placed than they are to know whether there is a problem? If a sheriff is turning up in court for 20 days a year and—for whatever reasons—it is a complete disaster, the person best placed to know that and to make a recommendation to the minister is the sheriff principal. The bill does not bind the people involved; it means that there would not be automatic reappointment.

Donald Gorrie (Liberal Democrat, Central Scotland)

I wanted to raise the point that Euan Robson and Gordon Jackson have just dealt with. My knowledge of law is nil and my regard for it is pretty near nil. However, like other members, I think that I have some understanding of the English language. To me, section 11B(5) means that a sheriff may be reappointed unless the sheriff principal has made a recommendation against him. It says that he

"may be reappointed and shall be entitled to be reappointed".

The august lawyer next to me, Robert Brown, has suggested that a comma after "may be reappointed" would solve the problem. Perhaps we will have to have a great debate about the comma.

It is important that the ambiguity is straightened out. The idea that a sheriff principal can destroy the career of a part-time sheriff merely by writing to a minister is unacceptable. I hope that the minister can clarify what the bill means. I assume that his clarification will have some legal impact.

Angus MacKay (Labour, Edinburgh South)

When Phil Gallie invited me to correct him if he was wrong, a member near to me made the uncharitable suggestion that he should not be corrected, but be sent for correction. That was unkind, particularly since Michael Matheson is having a substantial effect on Phil Gallie's speed along the road to Damascus, something that is demonstrated by the fact that, in discussing the previous group of amendments, Phil Gallie advocated the appointment of a part-time trade union representative. We welcome his support for trade unions and look forward to engaging with him on that issue. [Interruption.] Unfortunately, I was unable to hear what Phil Gallie said just then.

I will deal with amendments 17, 3, 19, 20 and 21. Phil Gallie said that he would not move amendment 18. All the amendments that I will deal with relate to aspects of conditions of employment of part-time sheriffs.

Amendment 17 would require the part-time sheriff to give three months' notice of an intention to resign. Having listened to the debate, I understand the sentiment behind the amendment, which is that, normally, part-time sheriffs should give some notice to allow there to be an orderly withdrawal from business. However, a part-time sheriff might resign due to an unfortunate event in their private life that might or might not be a matter of public knowledge. In that circumstance, it would not be reasonable to expect a part-time sheriff to work their notice or for the Executive to continue to offer that sheriff work during the proposed three-month period. I do not think that short-notice resignations will cause the Executive any difficulty, as we intend to make sufficient appointments to ensure that we can cope with what will be a relatively rare event and with the other circumstances that members have talked about. On that basis, I ask members to agree that the amendment is unnecessary and can be rejected.

Amendment 3 is designed to tidy up the wording of new section 11B, which will be inserted in the Sheriff Courts (Scotland) Act 1971 by way of section 6 of the bill. The amendment follows constructive comments that were made by members of the Justice and Home Affairs Committee at stage 2. At stage 2, we inserted amendments to section 11B that specified the circumstances in which a part-time sheriff coming to the end of a five-year term would automatically be reappointed. Some members queried whether the reference to the sheriff being "entitled to be reappointed" was the clearest way in which to convey the intended meaning. We have given further consideration to that matter and have lodged an amendment that more clearly conveys the intended meaning. Amendment 3 makes it clear that an individual will not be reappointed if they do not want to be. It was to cover that situation that the previous reference to an entitlement to reappointment was included. Amendment 3 improves the drafting of the bill and makes no change to the substance of the provisions that were approved at stage 2. I therefore invite members to support amendment 3.

Amendment 19 seeks to limit the number of situations in which ministers may treat reappointment as discretionary rather than automatic. Unlike amendment 18, amendment 19 removes only two of the grounds that are set out in the bill. In responding to members' comments on amendment 19, it may be helpful if I explain the Executive's intentions on this matter.

In the bill as drafted, we propose that reappointments of part-time sheriffs should be automatic in most cases up to the age of 70, which is the retirement age for permanent sheriffs who were appointed after 1995. However, we suggest that, in a small number of situations, there should be pause for thought before a reappointment is confirmed. Those situations are described in subsections (5)(a) to (5)(d) of section 11B.

The first situation is when a part-time sheriff has reached the age of 69 and is within a year of retirement. He or she could be reappointed, but the question is whether he or she should be reappointed rather than make way for a younger recruit.

The second situation is when a sheriff principal has had to consider a stated case from a part-time sheriff that has been referred to the sheriff principal as the court of appeal. If the sheriff principal—himself an experienced individual—judges that the work of the part-time sheriff is seriously deficient, it is reasonable that the sheriff principal should be able to draw those concerns to the attention of ministers.

The third situation is when a part-time sheriff has failed to offer 50 or more days' service in the previous five years, in which case it is reasonable to ask whether the part-time sheriff has taken seriously the heavy responsibilities that are acquired in accepting the office.

The fourth situation is when the volume of business is such that ministers do not require the services of as many part-time sheriffs after the bill passes into law.

It is worth stressing that the conditions in the bill mean simply that ministers would give thought to an individual situation, after which a reappointment might be confirmed in any event. We do not think it unreasonable for ministers to be given an opportunity to reflect before making a decision. I invite members to agree that the provisions in the bill represent the right balance between the independence of the part-time sheriff and the duty of ministers to review cases in which automatic reappointment might not be the appropriate response. The ministers will have to exercise reasonably their power not to reappoint, otherwise their decision could be judicially reviewed.

Amendment 20 would confer on the Lord President, as well as on the Scottish ministers, the power to request that a tribunal investigate whether an individual part-time sheriff should be removed from office on grounds of inability, neglect of duty or misbehaviour. If amendment 20 were passed, it would place the Lord President in an odd situation. For example, the Lord President may order that an individual's behaviour be investigated and, under the bill as drafted, he would have the sole authority to determine the membership of the tribunal that would undertake that investigation. It could be speculated that the Lord President would select members for that tribunal who would support his initial suspicions about an individual's behaviour. That would be an invidious situation for the Lord President to be in and the bill should not place him in it. The Lord President is content with the bill as drafted, and I invite members to reject amendment 20.

Amendment 21 would require regulations that were made by Scottish ministers to govern the operation of a tribunal for the removal of a part-time sheriff to include provision for giving a part-time sheriff who was under investigation the opportunity to be heard. As members of the Justice and Home Affairs Committee are aware, an amendment along those lines was discussed at stage 2, when I gave specific assurances that the regulations that the Executive would make on the procedure of the tribunal would include a requirement on the tribunal to give the part-time sheriff who was under investigation an opportunity to be heard before decisions were made.

We intend to consult fully before bringing draft regulations before the Parliament. I do not think that it is necessary to describe any particular feature of the regulations in the bill. In view of the assurance that we will regulate so that part-time sheriffs have the opportunity to state their case before a report is made, I invite members to reject amendment 21.

In summing up, I invite members to reject amendments 17, 19, 20 and 21, and to approve Executive amendment 3.

Roseanna Cunningham (Scottish National Party, Perth)

I have listened with interest to the various speeches, and have noted Gordon Jackson's expectation that part-time sheriffs will never behave in such a fashion as to put courts in disarray. I confess that I had not thought that any sheriff would be so unprofessional as to walk off in the middle of a trial. I was thinking of a scenario in which a sheriff who is booked to work for a week or two somewhere decides part way through not to continue. Gordon Jackson is quite right that it would be profoundly unprofessional to walk out in the middle of a trial.

Given that everybody seems to be absolutely reassured that the issue of notice does not require to be dealt with in the bill, I will seek the approval of members to withdraw amendment 17.

On amendment 19, however, I am not sure that my concerns have been addressed. There is reason to think that new section 11B may be used as precisely the kind of fast-track provision about which concerns have been raised. The minister said that if the sheriff principal had a view on the standard of work of a part-time sheriff, it would be entirely appropriate for him to make a recommendation against reappointment. The bill already gives three specific reasons for the removal from office of part-time sheriffs. A sheriff principal may, for whatever reason, think that a part-time sheriff was unable to do the work, was neglecting his duty, or was misbehaving—goodness knows that that is entirely possible.

Euan Robson (Liberal Democrat, Roxburgh and Berwickshire)

Who would be in a better position than the sheriff principal to know whether a part-time sheriff was not discharging his or her duties?

Roseanna Cunningham (Scottish National Party, Perth)

Mr Robson completely misses the point. Of course the sheriff principal is in a position to know that. The sheriff principal can recommend to the Scottish ministers that a part-time sheriff should be investigated and dealt with under the procedures in the bill for the removal of part-time sheriffs. That would allow the part-time sheriff to go to the tribunal. The difficulty is that, if action is taken four years and nine months into a part-time sheriff's term with a quiet word by the sheriff principal in the ear of the appropriate minister, and then that sheriff is not reappointed, where is the sheriff's recourse to any kind of natural justice?

Gordon Jackson (Labour, Glasgow Govan)

Does Roseanna Cunningham accept that, in the real world, there might be occasions on which one would not like to take the extreme step of throwing a part-time sheriff off the bench, but one would not want to reappoint them? I see that, strictly speaking, that argument may not be attractive, but in the real world, although one may not want to be draconian, one may not want to reappoint a sheriff. Is there not a balance to be struck?

Roseanna Cunningham (Scottish National Party, Perth)

That is a very interesting interjection, which suggests to me that the provision is intended to be used as a fast-track procedure. Under that procedure, the part-time sheriff would not have recourse to the protection that is provided in the provisions on tribunals. What recourse would the part-time sheriff have if the refusal to reappoint took place in the way in which Mr Jackson described?

Amendment 21, in the name of Phil Gallie, deals with the tribunal procedure and so I am of the view that there is no contradiction with amendment 19. My concern is that we will have a set of part-time sheriffs who, for one reason or another, never get to trigger the tribunal procedure because they fall into the interesting new category introduced by Mr Jackson. That is why I intend to press amendment 19.

I listened with interest to the comments on amendment 20 and have decided not to move the amendment. I have heard some interesting comments about the dual role of the Lord President in certain circumstances and I remind Mr Robson and other members that many senior members of the judiciary and the law officers have dual roles. It may be that the principle that Mr Robson seeks to apply in respect of the Lord President should apply across the board; Mr Robson may find that he is on a different side of the argument from some of his colleagues when we debate those measures.

I have no difficulty with Executive amendment 3, which is straightforward and responds to concerns that were raised at stage 2. I have already dealt with amendment 21, which the SNP will support. We consider that amendment to be reasonable; it does not contradict amendment 19.

Amendment 17, by agreement, withdrawn.

Amendment 18 not moved.

Amendment 3 moved—[Angus MacKay]—and agreed to.

Amendment 19 moved—[Roseanna Cunningham].

Patricia Ferguson (Labour, Glasgow Maryhill)

The question is, that amendment 19 be agreed to. Are we agreed?

Patricia Ferguson (Labour, Glasgow Maryhill)

There will be a division. Members have two minutes in which to cast their votes.

Patricia Ferguson (Labour, Glasgow Maryhill)

The result of the division is: For 42, Against 65, Abstentions 0.

Amendment 19 disagreed to.

Amendment 20 not moved.

Patricia Ferguson (Labour, Glasgow Maryhill)

Amendment 21 has already been debated with amendment 17. Do you wish to move the amendment, Mr Gallie?

Phil Gallie (Conservative, South of Scotland)

The minister has agreed to introduce an appropriate regulation. Given that assurance, I will not move the amendment.

Amendment 21 not moved.

Patricia Ferguson (Labour, Glasgow Maryhill)

Amendment 4 is grouped with amendments 22 and 23.

Angus MacKay (Labour, Edinburgh South)

Amendment 4 was lodged for the absence of doubt and for the sake of clarity. It makes explicit that the existing provisions in the District Courts (Scotland) Act 1975 to remove or restrict the functions of a justice on grounds of age or for no longer meeting the residence requirements are to be retained, and are not to be the subject of a tribunal constituted for that purpose.

Should I deal with amendment 22 now, Presiding Officer?

Patricia Ferguson (Labour, Glasgow Maryhill)

I would prefer if you only spoke to amendment 4 at this point.

Angus MacKay (Labour, Edinburgh South)

Done.

I move amendment 4.

Phil Gallie (Conservative, South of Scotland)

The Law Society of Scotland have suggested that amendments 22 and 23 would be appropriate. Amendment 22 enables an investigation into the fitness of the justice, to be initiated by the sheriff principal for

"the commission area for which the justice was appointed".

The reason for the amendment is that the right to instigate an investigation should not rest solely with the Executive. The judiciary, in the form of the sheriff principal, ought to have the right to initiate an investigation, if he or she has concerns as to the competence or fitness of the justice in question.

Amendment 23 returns to the point that, if anyone is accused, it is only right that they have

"the opportunity to be heard".

Patricia Ferguson (Labour, Glasgow Maryhill)

I now invite the minister to speak to amendments 22 and 23.

Angus MacKay (Labour, Edinburgh South)

Amendment 22, which seeks to give the sheriff principal of the relevant commission area the power to request the investigation of a justice, means that a sheriff principal would be expected to sit as a judge at a tribunal. To allow the sheriff principal the power to ask for such an investigation is unnecessary, because the sheriff principal would need at least some knowledge of the behaviour complained of. That might compromise the subsequent role of the sheriff principal, and that relates in some respects to our earlier discussion about the Lord President.

Amendment 23 is similar to amendment 21, which related to part-time sheriffs, and we ask members to reject the amendment for the same reasons as were outlined in our earlier discussion. There is no need to require in the bill that the justice tribunal regulations include provisions that give the justice an opportunity to be heard. We have already given assurances that the regulations will include such provision. In any event, all tribunals that sit to decide disciplinary matters require to follow the principles of natural justice. A failure to follow those principles would allow very good grounds for a successful appeal. The principles are well settled in law, and there is no doubt that the tribunal must follow them. They include a need to hear all sides to a dispute. In short, amendment 23 asks to have done what must be done anyway.

We ask that amendments 22 and 23 be not moved or rejected.

Roseanna Cunningham (Scottish National Party, Perth)

Executive amendment 4 is clearly technical, and we have no difficulty with it. Amendment 23, which deals with justices, is effectively the same as Mr Gallie's earlier amendment covering part-time sheriffs, and my views are the same as they were earlier.

I wish to ask a question about amendment 22. I am not clear about how it would come to the notice of the sheriff principal if a justice was creating some difficulties in district courts. I would be interested to know how a sheriff principal would be in the position to realise that that was happening.

Phil Gallie (Conservative, South of Scotland)

I think that there is no official line of communication, but the sheriff principal would, I suspect, become well aware of justices who were building up a reputation for inefficiencies or for a lack of expertise. Having said that, it all seems pretty irrelevant, as the minister has persuaded me not to move amendment 22.

Amendment 4 agreed to.

Amendment 22 not moved.

Phil Gallie (Conservative, South of Scotland)

I am grateful to the minister for accepting that he will provide regulation and, on that basis, I will not move amendment 23.

Amendment 23 not moved.

Patricia Ferguson (Labour, Glasgow Maryhill)

We now move to amendment 25, which is grouped with amendment 26. I call Phil Gallie to speak to and move amendment 25, and to speak to amendment 26.

Phil Gallie (Conservative, South of Scotland)

Councillor justices or local authorities have almost certainly told every member in the chamber that it would be a bad move to remove, at a stroke, people who have given quite considerable time and effort to their role as justices through their appointment as elected councillors. At this point, we should pay some tribute to the people who have served the benches well over many years, for the most part without complaint.

We can acknowledge certain aspects of the argument for standing down councillor JPs. Under their terms of contract, judges, sheriffs, tribunal chairmen and even the police are not allowed to have political links. As a result, one could certainly question how on earth councillors who are, in the main, elected under political labels can be expected to be neutral as justices. However, from comments made at the committee by the minister and others, it has become apparent that that is not really why councillor justices are being stepped down. The real reason is the financial interests of the local authorities that the justices represent—councillor justices with such interests in the well-being of their local authority could be tempted to give foul judgment.

There is a way around that concern. We must remember that that role can be removed from a councillor JP at any time. Once they are appointed at the start of the council, they can be stood down halfway through their term in office. From a local authority viewpoint, there is an element of patronage. Furthermore, changing the law to allow councillors to be appointed in their own right as justices of the peace but still remain sitting councillors might provide a solution that would allay some of our fears about the loss of expertise in the district courts. That is the basis for amendment 25, and I ask the minister to give it careful consideration. It will not contravene the ECHR, as so many other amendments seem to, and will acknowledge the expertise and knowledge that some councillor JPs have built up over many years.

Amendment 26 simply endorses that view, and is therefore consequential to amendment 25.

I move amendment 25.

Michael Matheson (Scottish National Party, Central Scotland)

From Phil Gallie's comments on amendment 25, he seems to intend that councillors who are appointed as JPs in future should be only signing JPs. Furthermore, amendment 26 seeks to ensure that people who are currently councillor JPs can continue as full JPs.

As members will be aware, one of the primary purposes of the bill is to deal with problems that could occur with the ECHR. Although the evidence that was given to the Justice and Home Affairs Committee on whether councillors being full justices would contravene the ECHR was ambiguous, there was a view that the position could be challenged. On that basis, and given the previous problems that we have had with incorporating the ECHR into our domestic law, it is appropriate that we should be prudent and err on the side of caution. If there is the potential for a challenge, we should move in the direction of preventing it.

In addition, concerns have been raised about the effect on the work of district courts of the reduction in the number of councillor JPs, who would no longer be able to practise as full justices. However, in the evidence that the Justice and Home Affairs Committee received there was a view that although there would be some localised difficulties initially, such difficulties could be dealt with by the other serving justices.

Phil Gallie (Conservative, South of Scotland)

Would Mr Matheson acknowledge that I am looking for a short-term solution, something that ensures that district courts continue to function in a reasonable manner? I point out to him that he said that we "could" contravene the ECHR. My view is that my proposed change will not contravene the ECHR, but that is a matter of opinion, which is all that Michael Matheson stated.

Michael Matheson (Scottish National Party, Central Scotland)

Given Mr Gallie's views on the ECHR, I am not sure if his view on whether it will be contravened carries much weight. The evidence that was given to the Justice and Home Affairs Committee did not indicate that, as a result of this bill, district courts would not be able to cope. Only around 10 per cent of JPs are councillors, so there are plenty more JPs who will be able to take on the work in the district courts. If we are to work on a short-term basis, we could only do so until the beginning of October. We should act now, be prudent and make sure that we do not find ourselves, or JPs who are councillors, being challenged in October.

On that basis, we will not be supporting amendments 25 or 26.

Dennis Canavan (Independent, Falkirk West)

I fully support the European convention on human rights. However, as Phil Gallie said, there is a long-standing tradition in Scotland of some people who are councillors sitting on the bench. It is a long-standing tradition indeed. My grandfather was a Labour councillor in Cowdenbeath in the 1920s. He was also a justice of the peace who sat on the bench, and he did so even after he retired as a councillor.

I must confess that when I was a youngster I did not fully comprehend the local system of dispensing justice and I said to my grandfather, "Granddad, how on earth can you sit there in judgment of your fellow human beings?" It was a small community, where everybody knew everybody else, and sometimes the people who were appearing before my granddad on the Monday morning had been lifted—literally in some cases—by the police on the Saturday night, when possibly their gravest crime was having too much to drink.

My granddad's response was, "Well, son, my usual maximum fine is half a crown, or five shillings for a second offence, but these poor people would probably end up in jail if there was a right-wing reactionary Tory sitting on the bench." [Laughter.] Things have probably moved on since then, but I tell Phil Gallie this: if I ever landed on the wrong side of the law, I would rather be judged by people like my grandfather than have Phil on the bench in judgment on me.

On Phil Gallie's amendment, I gave the minister a copy of correspondence from the director of law and administration for Falkirk Council, which contains points that I would like the minister to address. The letter says, among other things:

"Within Falkirk Council, there is only one Court Justice who is entitled to sit on the bench who is affected by the proposed restrictions. All current ex-officio Justices will, however, also be affected by the proposals."

The restriction

"would preclude three of our Councillors from remaining as members of the local Justices Committee. It would also preclude two Councillors from remaining as members of the local Justice of the Peace Advisory Committee."

Part of the problem may be that the council manages the district court. The director of law and administration, in her letter to the minister's department, says that the council

"may be thought to benefit from the imposition of fines and that Councillor or ex officio Justices may be perceived to lack the necessary independence and impartiality by virtue of their relationship with the local authority managing the Court."

However, as the minister will see from the letter, the council

"suggests that a better way of addressing this difficulty would have been to alter the administrative and financial arrangements of the Court, in order to prevent any perception that the authority may benefit from fine income."

In the letter, the council asks for a meeting with the Scottish Executive to discuss those matters. It would appear that that request has been ignored and that the council has not even had a response to its letter. I am not surprised at that, as the Scottish Executive is not renowned for speedy and positive replies to letters from MSPs. I suspect that many local councils throughout Scotland have had a similar experience.

I would be grateful, however, if the minister would give a considered response to the points made by Falkirk Council. Councils—and members of councils—throughout Scotland are probably raising those matters. If I get a response from the minister, I can report to the council that its views were given some consideration by the Executive before a final decision was taken.

Unusually for me, I agree with Phil Gallie. I hope that the minister will take the opportunity to put on record the Executive's appreciation, and indeed that of the Parliament, for the dedicated public service over many years that some councillors have given in their dual role as elected representatives of the people and—doing their best to administer justice—as justices of the peace. Their service ought to be recognised by the Executive and by the Parliament.

David Mundell (Conservative, South of Scotland)

I do not wish to repeat what I said when we debated this at stage 1, but I am disappointed that the Executive has pressed ahead with these measures in the bill, on the basis of what Michael Matheson has acknowledged as some ambiguous advice about the impact of the ECHR on our district courts. When officials gave evidence to the Subordinate Legislation Committee, they made it clear that there was not an ECHR problem with the way that the district courts were operating.

In rural areas, the role of a justice of the peace is distinct, in the sense that, as a result of cases that come before district courts being routinely reported in great detail in the press, a justice of the peace has a profile in the community. That is not so much the case in urban areas. To accept that profile requires special skills and willingness. That is why, in many rural areas—Dumfries and Galloway, for instance—many councillors have been the mainstay of the district court and have sat on the bench.

It is disappointing that the Executive, rather than considering the experience that such people have brought and the fact that there have been no complaints about individual bias, political or otherwise, has not sought to stand the corner in order to retain our councillor justices. Instead, it has sought, ahead of its review, to disbar them. I support Phil Gallie's amendment, which I acknowledge is a temporary solution, because I think that the proper place to examine the role of justices, and who should become justices, would be in the Executive's inquiry.

As I understand the current situation, no councillor justices are sitting, so nobody can argue that there is a current ECHR problem. It would have been far better to withdraw the proposals and reconsider the matter in the light of the Executive's review. Dennis Canavan and others have made it clear that many councillors have contributed significantly to the administration of justice in their local communities. I hope that the minister will acknowledge that, and acknowledge the fact that no personal issues in relation to any councillor justices have led to the introduction of the proposed measures.

I would also like to hear the minister say that he is committed to the delivery of local justice in local areas. Michael Matheson may dismiss as localised difficulties some of the problems that are arising in areas such as Dumfries and Galloway, but those difficulties are real and substantial, and people are not queuing up to become justices. It is important that people should be able to get justice in their local community, without having to travel many miles to the court. People should have access to justice that is administered by somebody who knows the context of the community and of the offence. I hope that the minister will confirm his commitment to the continuance of the district court and that the review will seek to improve that court and not to undermine it in any way.

If the proposals become law, it is sad that we will lose a large group of experienced justices—of whom there has been no significant criticism of the way that they have operated as individuals—on very ambiguous ECHR grounds. I hope that those members who know the work that councillor justices have done across Scotland will feel able to support Phil Gallie's amendment.

Scott Barrie (Labour, Dunfermline West)

I, too, want to extend a great vote of thanks to the justices who have performed such a magnificent task in our district courts in the past. However, the Executive was right to introduce, in section 9, the proposed changes to the District Courts (Scotland) Act 1975, and we should support neither amendment 25 nor amendment 26 today.

I find today's criticisms of the Executive quite strange. In the past, the Executive has been accused of not anticipating the ECHR—during a couple of debates in the chamber, it was suggested that the Executive should have had some sort of crystal ball to enable it to guess various things in advance. On this occasion, the Executive is introducing proposals that may avert an open challenge under the ECHR and it should be congratulated on looking ahead, exactly as it has been asked to do on previous occasions.

Michael Matheson is correct that the numbers involved represent less than 10 per cent of JPs, and that not all of those who are involved actually sit as magistrates on the bench. It is right that we should separate those two functions. Dennis Canavan spoke eloquently of his grandfather sitting in the burgh court in Cowdenbeath. He probably carried out a good job in the 1920s, but we are not in the 1920s. We have moved on. Lay justice is an important part of the criminal justice system and should be bolstered, but the difference that the Executive proposes in the bill should strengthen rather than weaken, as David Mundell seemed to suggest, lay justice.

We should not support amendments 25 and 26. When the Justice and Home Affairs Committee took evidence, a large volume of evidence from various councils throughout Scotland argued that the existing legislation should be retained, but the committee felt that the arguments, when balanced up with what the Executive proposed, did not come up to the mark. We should reject the amendments today.

Bruce Crawford (Scottish National Party, Mid Scotland and Fife)

I was a councillor justice on the bench before I became the leader of Perth and Kinross Council in 1996. While the measures in the Bail, Judicial Appointments etc (Scotland) Bill might be regrettable, I fully understand why they are necessary. We must ensure that the legal process that is available to us in this country is robust and defendable.

I cannot imagine for a minute that a councillor JP would increase fines just to get extra income—that just would not happen. However, that is not the point at issue. The point is that someone might point the finger and make that suggestion. If I were a litigant in such a situation and were going to appeal, I might trawl through the available monitoring statistics for district courts. I might find out where speeding offences occur, what level of fine is attributable in that area, discover how many councillors are sitting on the bench and, if that reveals a workable equation, lodge an appeal that would be difficult to defend.

We must also have from the Executive a thoroughgoing overhaul and review of the appointment process for JPs, as many local authorities conduct much of that process behind the scenes. The recruitment process is not as open and fair as it should be. If local authorities had an open and fair process, I am sure that many more people with the capacity and the competence to undertake the role of JP would come forward. In such circumstances, the need for councillor JPs would decrease and we might find people with a lot more talent who are prepared to serve on the bench.

I ask the minister to take on board a serious review of the appointment process within local authorities. Some authorities are quite open and above board, putting vacancies out for advertisement in the press, implementing a proper process thereafter and considering person specifications; however, others conduct the process quietly behind the scenes. The situation must be sorted out, with a proper rationale being brought to bear.

Patricia Ferguson (Labour, Glasgow Maryhill)

Before I call the minister, I ask members to keep the noise level down, as it is beginning to creep up.

I call Angus MacKay to speak to amendments 25 and 26.

Angus MacKay (Labour, Edinburgh South)

I am happy to put on record the Executive's acknowledgement of the work done by councillor and ex officio justices over the years and to acknowledge the value of that work. Phil Gallie appeared to make a new friend when he put on record his testament, as Bruce Crawford arrived in the chamber at that point and will have been particularly delighted to be congratulated for his past efforts. I know that a number of other members have been councillor JPs in the past, and we wish to acknowledge the work of all current and previous councillor JPs.

Having said that, a number of important issues have been raised in the debate on these amendments, and it is worth addressing those issues.

Amendments 25 and 26 relate specifically to the position of councillor and ex officio justices. The bill as it stands provides that existing councillor and ex officio justices will not be able to serve as bench-sitting justices, and that Scottish ministers and local authorities will no longer be able to appoint members of a local authority as full justices. As Phil Gallie explained, his amendments would, in large part, reverse that position. The consequences of his amendments would be that the 88 or so existing councillor and ex officio justices could continue to sit as full justices and that Scottish ministers could continue to appoint councillors as full justices.

These matters were discussed in detail during stage 2 of the bill, when I made pretty clear our express view that the continued use of councillor and ex officio JPs in a bench-sitting capacity would be incompatible with the requirements of the ECHR. That remains the Executive's view, and therefore I believe that Phil Gallie's amendments would fall foul of the convention for the same reason that I put forward in relation to earlier amendments. I will take some time to explain why.

First, councillors are paid allowances by the local authority, which is a recipient of some of the fines levied by justices. That, in itself, could well create a significant risk that a councillor who is a justice would not have the perception—that is the important point—of impartiality required under article 6 of the convention. We should remember that it was the perception of impartiality that was the substantial issue in respect of temporary sheriffs.

Secondly, justices who are councillors have no security of tenure. As members will be aware, the lack of security of tenure was a major factor in the case of Starrs and Chalmers, which affected temporary sheriffs. Clearly, there is an even greater risk of challenge to ex officio justices, who lose their commission if they lose their seat. Indeed, they are liable to lose their commission simply as a result of a local authority withdrawing their nomination as a justice, for which no reasons need be given. Ex officio justices are therefore totally dependent on the good will of local authorities for their initial nomination and its continuance.

Finally, there are no statutory arrangements governing the selection and recruitment of justices. Ministers rely on the recommendations of local advisory committees, which are selected by Scottish ministers and contain members who are recognised as supporters of political parties. There is therefore an obvious perception of political influence in the composition of the committee that puts forward nominations for justices where the committee recommends the appointment of persons who are councillors. There is not a sufficiently patent element of independence in the appointment process for councillors to ensure that they would be regarded as compliant with article 6.

Taking those factors together, it is the Executive's view that there is a real risk of challenge to councillor and ex officio justices on the basis of the perception that they lack the necessary independence and impartiality. I emphasise that there is no suggestion of actual bias on the part of any councillor or ex officio justice. There was no suggestion of bias on the part of temporary sheriffs either, but as the High Court made clear in the case of Starrs and Chalmers, it is the perception that counts for ECHR purposes.

It is also important to echo the view expressed by the Justice and Home Affairs Committee, and raised in particular by Gordon Jackson, that the concept of elected politicians sitting as judges is at least an uneasy one. We believe that the ECHR risks are real and substantial. I endorse the view of the committee that there are strong arguments of principle in favour of trying to ensure clear separation between active political and judicial functions.

Those are the reasons why the Executive believes that it is important to act to prevent challenge under the ECHR.

A number of other issues have been raised during the debate. Bruce Crawford raised the issue of the appointments process for justices. I want to cover that point and the issue raised by David Mundell about local justice in rural and remote areas. We intend the review of the district courts to be wide-ranging. There is no reason why it cannot examine some of the issues raised today. We have no preconception about the outcome of the review.

Last week, I met representatives of the Stornoway Trust in Stornoway, where I also had the opportunity to meet individuals from the local authority and the local justice system who wanted to make representations about the nature of justice in rural and remote areas of Scotland. One of the assurances that I was able to give them is that I want to ensure that the outcome of the review does not prejudice or reduce the quality of justice in those parts of Scotland. I hope that that puts David Mundell's mind at ease to some extent.

I also made it clear that we want to receive representations not just about the conclusions of the review, but about what the review should cover. In Stornoway, we received representations that one of the things that the review should cover is the overlap between district courts and the role of sheriffs. Bruce Crawford's specific point about the way in which local justices are appointed and then feed into the local justice system might usefully be taken on board by the review. We will be happy to take on board a wide range of opinions and submissions.

That leaves me to deal with the points raised by Dennis Canavan in relation to Falkirk Council. I do not want to be confrontational or unconstructive, but I must begin by refuting one or two of the points made by Dennis Canavan.

The submission from Falkirk Council to the Scottish Executive was dated 29 June, which was six days ago. The letter would therefore have arrived perhaps only four or five days ago. My understanding is that the individual to whom it was addressed has replied to the letter and has explained in detail the Executive's position on the issue. There is therefore no question in this particular case of the Executive dragging its feet in responding to Falkirk Council. I hope that the fact that I have met representatives of Western Isles Council in Stornoway indicates that we have tried to be open to questions and concerns at all times during the process. Indeed, we have involved the District Courts Association in submissions about where we should go on such issues.

Nevertheless, Falkirk Council does raise substantive points in its letter. I am happy to put those on record today, which will perhaps give some peace of mind to Dennis Canavan. Falkirk Council suggested that, instead of standing down councillors and ex officio justices, fine income could be diverted from the local authority. That proposal has been made by a number of local authorities. In our view, that would not be sufficient to remove the serious risk of incompatibility with the ECHR that arises from the role of the JP advisory committees in nominating justices—in other words, from the political dimension. We also feel that it would be a lengthy way of resolving the problem and would raise the question of what happens to fine income within the Treasury.

Falkirk Council raised two further matters. Their letter states that there is no mechanism for restoring councillor justices to the bench if they cease to be councillors. That is not correct. Section 9 would insert in the District Courts (Scotland) Act 1975 a new section 12(2)(b), enabling ministers to appoint a signing justice as a full justice. The people affected by this bill can put themselves forward for appointment to the bench again if they are no longer serving as councillors. Falkirk Council also says that councillor justices will not be permitted to sit on the local JP committee. We proposed an Executive amendment to the bill at committee to allow that, so some of Falkirk Council's concerns have been addressed.

Since November 1999 the Lord Advocate, bearing in mind his duty to act in accordance with the ECHR, has declined to prosecute before a councillor or ex officio justice. Since then the district courts have had to do without those justices. There is no evidence that that has given rise to practical problems. District court business has fallen dramatically in recent years: from 87,000 cases in 1991 to 48,000 cases in 1999, a reduction of around 45 per cent. Many local authorities had made no use of councillor or ex officio justices on the bench even before last November. Those who did so can of course put forward nominations for new justices at any time.

Those arguments make clear why the Executive believes we must act and it is right to do so, judiciously and taking account of views of individuals engaged with local justice in Scotland. I ask members to reject amendments 25 and 26.

Phil Gallie (Conservative, South of Scotland)

The minister's arguments in winding up were much better than what he said at the start—which was the weakest defence that I have heard from the minister. He argued that local authority councillors relied on the council to pay their wages. If he accepted my amendment, that would not be the case, because the local authority and JP inputs would be removed. They would not be sitting as councillor appointees to the bench.

The minister also spent some time on the argument about nomination by local authorities. That would be dispensed with if my amendment were accepted. The minister talked again about the perception of conformity with the ECHR. Honestly—the ECHR, on my understanding and that of everyone here, is supposed to improve the law and make people feel more comfortable. I cannot see that taking out councillor JPs does that, particularly when we hear of examples such as Dennis Canavan's grandfather in Cowdenbeath—someone of a different political persuasion from me but committed to the community. That was David Mundell's message—about people committed to the community. No one can be more committed than by taking on the role of a councillor, particularly in the past, and at the same time the role of JP. No one does it for financial reasons; they do it because of their commitment to the community. The minister has ignored all of that—

Roseanna Cunningham (Scottish National Party, Perth)

How would Mr Gallie feel about sheriffs sitting on the bench and being politically active? Would he see that as acceptable? If not, why is a councillor sitting in the district court acceptable?

Phil Gallie (Conservative, South of Scotland)

If Roseanna Cunningham thinks back to my opening remarks, I referred to that—to people who must be removed because of politics. We should examine that matter further down the line.

I take Bruce Crawford's comments on board—I would go along with the idea of a review of the matter in the longer term. I argue that we should examine the situation whereby serving justices of the peace who have done a good job might be dismissed arbitrarily because there is a perception—I underline the word perception—that we are not conforming with the ECHR.

I cannot resist mentioning Dennis Canavan's reference to 2s 6d and 5 bob—that brings affectionate memories bounding back to my mind, particularly in respect of my love of sterling.

Dennis Canavan (Independent, Falkirk West)

Is Phil Gallie also against decimalisation? [Laughter.]

Phil Gallie (Conservative, South of Scotland)

I listened carefully to Scott Barrie's comments about separation of functions.

Amendment 25 clearly acknowledges the separation of functions. Many individuals have served as JPs for a number of years and have, somewhere along the line, decided that they want to give more time and effort to the community and have taken on the role of councillor. Why on earth should they step back from their original commitment to act as JPs? The minister should think about that. Why should people who have served in that way for a number of years stand down? They have been reasonable and committed enough to become councillors.

My amendment offers a short-term way forward and it would give the minister time to set up the review that Bruce Crawford wants, which would meet the wishes of everybody in the chamber. We do not want a quick hash-bash approach to be taken, irrespective of the minister's words. I acknowledge that there are problems in the High Court and in the sheriff courts that we do not want to see in district courts. Michael Matheson argued that there is no problem in the district courts. I ask the minister to reconsider whether he will agree to amendment 25.

Patricia Ferguson (Labour, Glasgow Maryhill)

The question is, that amendment 25 be agreed to. Are we agreed?

Patricia Ferguson (Labour, Glasgow Maryhill)

There will be a division.

Patricia Ferguson (Labour, Glasgow Maryhill)

The result of the division is: For 16, Against 93, Abstentions 0.

Amendment 25 disagreed to.

Amendment 26 not moved.

Patricia Ferguson (Labour, Glasgow Maryhill)

We now come to amendment 27, which stands on its own.

Phil Gallie (Conservative, South of Scotland)

The minister had strong opinions about councillors, saying that people who were paid by the local authority should play no part in the judicial processes of the district courts. Amendment 27 removes the words

"brought by persons authorised by"

from section 10(1), when the authorising would have been done by the local authority. As Roseanna Cunningham pointed out at stage 1, the clerks of the court in the district courts are employees of the local authority. It seems to me that all the arguments that the minister used against the appointment of councillors would also apply to the clerks of the court. I am therefore helpfully trying to assist the minister in amending the bill, so that it is in line with his own wishes.

I move amendment 27.

Roseanna Cunningham (Scottish National Party, Perth)

I am, I confess, a bit puzzled by what Mr Gallie has just said. When I read his amendment, it did not occur to me that he hoped to deal with the position of the clerks of the court in the district courts. Under no circumstances do clerks of the court institute proceedings in the district court, and section 10 is about the people who are, at present, entitled to institute proceedings. The clerks cannot do so; they merely give advice on the law to justices of the peace, who are generally not legally qualified. I do not see how the amendment even begins to address the situation of the clerks.

Robert Brown (Liberal Democrat, Glasgow)

I would like to speak against Phil Gallie's amendment, for the reasons that Roseanna Cunningham mentioned. We are dealing with section 10, on the abolition of prosecutions by local authorities, and I would like to reiterate a point that I made at an earlier stage in the debate. It concerns the liaison between the prosecuting authority—the procurator fiscal service—and the councils.

A number of municipal-type offences—I am thinking of houses in multiple occupancy and of matters that would come under the Public Health (Scotland) Act 1897—are relatively trivial but still come under the local authorities' panoply of powers for dealing with, for example, anti-social tenants. For years, difficulties have arisen between the procurator fiscal service and the local authorities over the seriousness with which such matters are taken. Some are prosecuted by the fiscal; some, in the past, have been prosecuted by the local authorities.

I would like an assurance from the minister that that issue will be taken on board. The procurator fiscal service must have the organisation and the facilities to deal properly and effectively with what, hitherto, have been regarded as relatively trivial offences but about which local authorities feel strongly. There is an important liaison and resources issue to be addressed.

Angus MacKay (Labour, Edinburgh South)

Amendment 27 seeks to amend section 10 to enable persons authorised by the local authority to continue to institute proceedings in a district court. It is the Executive's view that the fact that the legal assessor is an employee of the local authority means that there is serious risk of a successful ECHR challenge to the district courts in cases where the local authority is itself prosecuting before that court. That risk is present in all cases in which the local authority is the prosecutor, whether the prosecution is brought by a person instructed by the local authority or by a person authorised by the local authority. On those grounds, I ask Mr Gallie to withdraw his amendment, as it would prevent the bill from dealing fully with the ECHR difficulty that is caused when a local authority prosecutes in its own court.

Mr Gallie also raised the question of clerks of court. I must admit that, like Roseanna Cunningham, I was a little bit confused by that, but I shall address the issue, as it has been raised. The Executive does not believe that there is a serious risk of a successful ECHR challenge to the clerk of a district court on the basis that the clerk is an employee of the local authority, except in cases where the local authority is itself prosecuting, which will no longer be possible once the bill becomes law.

There are a number of reasons for believing that such a challenge would not be well founded. For example, the justice's decision is appealable, and there is therefore a proper opportunity for appeal and review of the justice's decision. The clerk does not take part in the decision making; his or her role, as Roseanna Cunningham said, is merely advisory and is restricted to legal matters. The clerk does not participate in the finding of the facts or in the final decision. In addition, the clerk has nothing to gain by exerting influence or showing partiality in the legal advice that is provided to the justice. Clerks have no interest in the outcome of the proceedings, so there could be no reason to believe that a clerk would try to give legal advice to ensure that there was a conviction.

Phil Gallie may be aware that a forthcoming case has been listed for hearing by the High Court of Justiciary at the end of July, and the Crown will be vigorously defending the position of clerks of the court in that case.

A note has magically appeared before me, which addresses the point that Robert Brown raised. It says that there is no reason why there cannot be discussions between the District Courts Association and the Crown Office about policy relating to the matters that Robert Brown mentioned. I hope that that puts his mind at rest.

In any event, I ask Phil Gallie to withdraw amendment 27, for the reasons that I have outlined.

Phil Gallie (Conservative, South of Scotland)

I make no apologies for the fact that the vehicle that I have used to have the debate is one that perhaps is not based entirely on substance, and I acknowledge what Roseanna Cunningham said in challenging my amendment. However, I believe that the position of district court clerks is an issue that must be dealt with, and the minister has, to a degree, acknowledged that.

One thing that Roseanna Cunningham said stirred up some concerns in me. She said—and the minister repeated—that the clerk is there to give advice to the justices themselves. That advice could certainly tend to change the opinions of the justices on some issues. Perhaps I am being naive about that, but I suspect that it could happen. However, irrespective of my doubts, I recognise that there is a current legal case that addresses the matter. The minister is defending the situation and I would be interested to know the outcome of the case. If it is indeed okay for district clerks to continue to be in the employ of the local authorities, and they are not seen to influence the fair working of the district courts in any way, the minister still has a good excuse to go back and look at other issues, such as the position of JP councillors.

Amendment 27, by agreement, withdrawn.

Patricia Ferguson (Labour, Glasgow Maryhill)

We now come to amendment 28.

Roseanna Cunningham (Scottish National Party, Perth)

I detect a certain amount of anxiety beginning to develop among members about when they will manage to get any lunch, so I shall try to be as brief as possible. Amendment 28 was triggered by expressions of concern by a rather eminent law professor in a university not very far from the chamber, so I put it out for discussion today.

At stage 2 there was an interesting, although brief, discussion generated by amendments lodged by Phil Gallie, in which he attempted to change the reference in section 11 to "the Scottish Ministers" to a reference to "the First Minister". We sought to establish what was meant by the term "the Scottish Ministers", and Phil Gallie asked whether it included the law officers. In his response, the minister talked about the definition of the Scottish ministers that appears in the Scotland Act 1998. However, he did not address directly the issue of the law officers. I would like him to deal with that today.

Members will be aware that the law officers are the Lord Advocate and the Solicitor General for Scotland. The Lord Advocate may have one of the oldest continuous public roles of anyone in any country in the world. It would be interesting to make a comparison with some other countries, but I suspect that the position of Lord Advocate has existed in Scotland longer than any comparable position in any other country. It is a role with a very long history.

The law officers are the ultimate source of advice to the Government on all legal matters. They are members of the Cabinet in their own right and they are independent of the Secretary of State for Scotland. The Lord Advocate is the principal law officer of the Crown in Scotland, responsible for investigating crime and for prosecutions in the High Court, sheriff courts and district courts. He discharges those functions through the Crown Office and the fiscal service. He is constitutional and legal adviser to the Government on Scottish affairs, and he is responsible for the Scottish parliamentary counsel.

The real issue is that the Lord Advocate is responsible for the prosecution of all crime in Scotland. Cases are brought in his name. The fact that the Lord Advocate has a dual legal-political role has caused some concern in the recent past about his impartiality, particularly as regards appointments. We have had some bruising debates in the chamber about the role of the Lord Advocate. In the Lord Advocate's absence, the Solicitor General tends to take on his responsibilities. Concerns have been expressed about the process by which appointments to the bench are made.

Starrs and Chalmers was a case brought under the ECHR in which the appointment of temporary sheriffs, involving the Lord Advocate, on an annual basis, with no security of tenure, was found not to be compliant with the relevant article of the ECHR. I know that Starrs and Chalmers was principally about tenure, but the issue of tenure arose only because of the fact that the person doing the appointing was the person responsible for all criminal prosecutions in Scotland. Indeed, it is possible for the Lord Advocate to give advice while trials are happening.

Given those circumstances, I would like the minister to say something about the role of the law officers in respect of judicial appointments. He may simply fall back on the line that he took at stage 2, which was to point out that a judicial appointments consultation is under way and that all these things will be dealt with in due course. However, today we are passing legislation, and we ought to clarify whether in the bill we are perpetuating a situation that has already given rise to a great deal of criticism and concern. Perhaps we ought to think rather more carefully about that.

I move amendment 28.

Phil Gallie (Conservative, South of Scotland)

I support the amendment. Roseanna Cunningham was right to say that I had concerns about the use of the term "the Scottish Ministers". The minister very kindly suggested a formula defining it but, as Roseanna Cunningham has pointed out, there are concerns about the involvement of the Lord Advocate and the Solicitor General.

Amendment 28 adds to the bill. It meets the minister's requirements and it clarifies my original questions concerning the issue. It would be nice if, for a change, the minister would say that he is prepared to accept one of the Opposition's amendments.

Angus MacKay (Labour, Edinburgh South)

I assure members that I am not likely to accept any of the amendments lodged today on the basis of doing so just for a change. I am sorry to have to disappoint Phil Gallie in that regard and to thwart his expectations.

Amendment 28 seeks to ensure that, alone among Scottish ministers, the Lord Advocate and the Solicitor General should not exercise any powers that are conferred under the bill or under any provisions of an act that is amended by the bill. It seems that the amendment is concerned with the powers that are conferred on the Scottish ministers in relation to the appointment and removal of part-time sheriffs, although the debate that has been generated today has gone wider than that.

The fact that the Lord Advocate and the Solicitors General are excluded on statutory grounds from exercising appointment powers does not prevent them from having a role in the appointment. Temporary sheriffs were required to be appointed by the secretary of state and not the Lord Advocate. However, it was accepted by the court, in the case that Roseanna Cunningham mentioned, that in practice the Lord Advocate played a significant role in the appointments.

A great deal has been said and written recently about the role of the Lord Advocate in appointment and reappointment of temporary sheriffs. We have studied the judgment in Starrs and Chalmers carefully, and in our scheme for appointment and reappointment of part-time sheriffs, we have tried to learn the lessons of that court case. We have changed the term of appointment from one year to five years. We have made reappointment virtually automatic, except in a few very limited situations in which reappointment would be discretionary. We have proposed that an independent tribunal should remove any part-time sheriff who is considered to be unfit to hold office. No minister will have any role in that process.

We have moved a long way towards distancing ministers from decisions about reappointment and removal of part-time sheriffs. It is true that the Scottish ministers will make the initial appointments, but they will be responsible for the expenditure, so it is right that they should do so. Ministers will make appointments after consultation with the senior judiciary. It is inevitable that the Lord Advocate will play a role in offering advice to ministerial colleagues on the selection of those for appointment.

We make no apology for referring to the Lord Advocate's role, and I believe that we do so on very sound authority. The first authority is:

"So far as the initial appointment (rather than the subsequent renewal of appointments) of temporary Sheriffs is concerned, I agree that appointment by the Executive is not inherently objectionable . . . I therefore conclude that the manner of appointment of temporary Sheriffs does not point towards any lack of judicial independence."

The second quotation is as follows:

"I do not have difficulty with the fact that temporary sheriffs are appointed by the executive, following upon their selection by the Lord Advocate".

Members will wish to note that the authors of those statements are respectively Lord Reed and Lord Cullen, in their judgments in Starrs and Chalmers.

I remind members that the Executive has published a consultation paper on judicial appointments, in which the Executive commends the establishment of an independent judicial appointments board. We must await views on the consultation paper, but we will certainly bring forward proposals as soon as possible. In the meantime, it is our view that we would be wrong to interfere with current arrangements by making changes in the bill. Rather than dealing piecemeal with new proposals, we think that they should be dealt with in their entirety, in one place and at one time.

Amendment 28 runs contrary to the broad philosophy of the Scotland Act 1998, which places collective statutory responsibility on the Scottish ministers in most cases and does not seek to specify which Scottish ministers should or should not exercise specific functions. It is therefore for the First Minister to decide how the functions of the Scottish ministers should be allocated among specific ministers. That point was rehearsed in committee.

I invite members to agree that it is not appropriate to seek to exclude the law officers from any involvement in advising ministers on the appointment of part-time sheriffs. I therefore invite members to reject amendment 28.

Roseanna Cunningham (Scottish National Party, Perth)

I disagree slightly with the minister. In my view, it is perfectly appropriate to seek to remove the involvement of the person responsible for prosecuting crime in Scotland from appointments to the bench. That issue is likely to be debated again in the judicial appointments consultation.

I understand what the minister has said about the bill, although I thought that he downplayed the role of the Lord Advocate a little. If he is content to have that on the record, I am content to hear him talk about the appointments in the terms that he is using today. In view of the fact that the judicial appointments consultation is on-going, I will seek leave to withdraw the amendment.

A broader issue should be addressed. The fact that legislation is triggered by the need for compliance with the ECHR does not mean that we need do only the absolute minimum that is required for compliance. There are always opportunities to do more with any legislation, to achieve a better result. The fact that the ECHR does not demand that we do something does not mean that we should not do it.

I ask leave to withdraw the amendment.

Amendment 28, by agreement, withdrawn.

Patricia Ferguson (Labour, Glasgow Maryhill)

We move to amendment 5, which is grouped with amendment 6.

Angus MacKay (Labour, Edinburgh South)

These Executive amendments deal with a minor new matter. I apologise to members that we did not spot the need for them at an earlier stage.

Amendment 5 ensures that a part-time sheriff can conclude any case that is started but not finished by the date on which the part-time sheriff's appointment comes to an end. If we did not make that change, it would mean that any such case would have to be reheard by a new sheriff, which would cause delay and additional expense for the parties involved. We touched partially on the matter earlier in relation to other amendments. I am sure that members agree that the situation is to be avoided and that the amendment delivers that objective.

Amendment 6 is a drafting arrangement that is entirely consequential on amendment 5. I invite members to approve the amendments.

I move amendment 5.

Amendment 5 agreed to.

Amendment 6 moved—[Angus MacKay]—and agreed to.

Patricia Ferguson (Labour, Glasgow Maryhill)

That concludes consideration of the amendments to the bill.

Bail, Judicial Appointments etc (Scotland) Bill

Patricia Ferguson (Labour, Glasgow Maryhill)

The next item of business is the debate on motion S1M-1079 in the name of Jim Wallace, which seeks agreement that the Bail, Judicial Appointments etc (Scotland) Bill be agreed to.

Jim Wallace (Liberal Democrat, Orkney Islands)

The Bail, Judicial Appointments etc (Scotland) Bill was introduced on 25 May this year. The fact that we are debating stage 3 on 5 July demonstrates that it has taken a great deal of commitment from all concerned to enable us to get to this stage before the summer recess. It was important that the bill be passed before the summer recess so we could appoint part-time sheriffs and have legislation in place by 2 October.

I want to thank the convener, members, clerks and officials of the Justice and Home Affairs Committee for the efficiency with which they dealt with stages 1 and 2 of the bill and for their co-operative handling of it. I want to extend a personal thanks to the Deputy Minister for Justice, Angus MacKay, for having borne the brunt of the ministerial work relating to the bill. I also want to thank officials in the justice department for the work that they have done. It is clear that this is an important piece of legislation and that it has required a lot of intensive work.

I hope that the Executive has co-operated and collaborated during the passage of the bill. We have listened carefully to the views that have been expressed by distinguished lawyers and experts on human rights, such as Professor Chris Gane, and by the Law Society of Scotland, Victim Support Scotland, the Sheriffs Association and the District Courts Association. When it has made sense to do so, we have willingly lodged amendments, and the bill is the better for all the work of the Justice and Home Affairs Committee and the representations that it received, distilled and put forward in its reports.

We have removed the power to appoint the members of the tribunal to remove part-time sheriffs from ministers' hands and put it into judicial hands. Greater security of tenure has been conferred on part-time sheriffs by stipulating that their reappointment will be automatic unless one of the grounds that are specified in the bill applies. We have brought the procedure for removing a justice of the peace into line with that for the removal of a part-time sheriff. We have also lodged an amendment that allows councillor justices to remain eligible for appointment to the justices committee.

My thanks are extended to all those who have expressed a view on the bill, who have helped to ensure that it will be a sound piece of legislation. The passing of this bill before the summer recess will enable the appointment of part-time sheriffs to proceed, thus relieving the burden on our sheriff courts. It will also ensure that our district court procedures on bail, under Scots law, can stand scrutiny under the European convention on human rights.

This is an important bill. It is the first piece of legislation that the Executive and the Parliament has dealt with that specifically addresses ECHR concerns. Throughout the bill process, I have been impressed by the readiness of members to accept the key importance of the convention and the need for Scotland to ensure that our laws and procedures are constructed in accordance with the rights that are guaranteed by it.

As I know only too well, the process of ensuring ECHR compatibility is not always comfortable. We may support the underlying values of the convention, feeling that our legislation already embodies them, but it is sometimes difficult to acknowledge instances in which it does not. The process of this bill has shown that when there is a commitment to the ECHR and the principles that it represents, much can be achieved through a constructive and sensible approach. I believe that the European convention on human rights should not be about conflict, but about development and acknowledging mistakes, when necessary, and seeking improvement. Most of all, it should be about putting into practice our beliefs in fundamental rights. I am therefore grateful for the approach that members from all parties have taken and I commend the bill to the Parliament.

I move,

That the Parliament agrees that the Bail, Judicial Appointments etc (Scotland) Bill be passed.

Roseanna Cunningham (Scottish National Party, Perth)

With the exception of the emergency Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which was passed in the aftermath of the Noel Ruddle affair, this must count as some kind of record for getting a piece of legislation on to the statute book. It feels as though the bill was introduced only about three and a half minutes ago. Paradoxically, we have run a marathon in that time to reach this point.

Unlike the Conservatives, the SNP does not bewail the incorporation of the European convention on human rights: we regard it as the minimum standard that we should seek to achieve in all that we do in Scotland. For that reason, we have accepted the need to make changes to bail. The truth is that there will be precious little difference in the granting and refusal of bail. I wish that the Conservatives would accept that, instead of taking the line that they have taken today. In practice, the bill will not make that big a difference.

Although the speed with which the Justice and Home Affairs Committee has had to deal with the bill has been breathtaking, I do not want to repeat my criticisms of that today. I understand why the minister was so concerned to have this bill passed. The impact of the Starrs and Chalmers case, which effectively found against the use of temporary sheriffs, was immediately felt in Scotland's courts, and the extent to which the justice system had come to rely on the extensive use of temporary sheriffs was perhaps not fully understood until they were no longer available. Arguably, that was a failure of previous Administrations, who did not monitor the situation.

The use of temporary sheriffs had been criticised for a considerable number of years. A main concern was that it was a way of getting justice on the cheap, as temporary sheriffs do not have rights to a holiday entitlement and other benefits—although that fact may give rise to what Phil Gallie anticipates as a trade union for sheriffs. Critics were equally concerned that the annual process of hiring and firing substantially reduced the appearance of impartiality, which is essential in our courts. Some of those critics were well known and wrote in the press years ago—people such as Ian Hamilton QC, who has been concerned about the use of temporary sheriffs for many years.

Unlike the Conservatives, I believe that it is right that, where possible, the Executive should anticipate successful challenges. My criticism in the past has been that the Executive did not properly anticipate challenges and that it did not do so in the case of Starrs and Chalmers, although it had been widely predicted that the Starrs and Chalmers decision would be unfavourable to the use of temporary sheriffs.

Was any assessment made of the likely effect on court rotas of the withdrawal of temporary sheriffs? It almost seems as if the Executive was caught by surprise by the impact of their removal. The result has been a period of profound disruption in Scottish courts. Trials have been set down for dates many months in the future and other business has been delayed almost indefinitely in some areas.

Those who use our courts will be relieved when the new part-time sheriffs are in place and there can be a return to some semblance of normality, although the events in the High Court in Glasgow last week suggest that normality in Scottish courts may be relative.

Surprisingly, the section on justices who are councillors turned out to be the section that generated most correspondence. Understandably, that came mainly from individual councillor JPs. Unfortunately, the alternative mechanism that they identified as preferable to removing them from the bench was not a measure on which the Parliament was competent, even if it had been politically acceptable, which is doubtful. That will be of little comfort to them, but it is difficult to see how the potential problem could have been solved other than by what is proposed in the bill.

Despite the short time scale for processing the bill, the Justice and Home Affairs Committee identified some serious shortcomings that required to be rectified before it would allow the bill to proceed. To its credit, the Executive accepted almost all of the committee's recommendations. On behalf of the committee, I thank the Executive for doing that.

With the agreed amendments, the SNP can support the bill. It is hoped that the woes of court practitioners will now be alleviated.

Phil Gallie (Conservative, South of Scotland)

I am a little disappointed that ministers did not use their ingenuity to find a means of introducing into the bill Tony Blair's ideas on on-the-spot fines.

We express regret that the sections on bail seem to have weakened the bail laws. We take some assurance from the words of Roseanna Cunningham and the minister that these provisions will not induce a major change in the operation of the bail laws as they are perceived by the public. We will watch this issue very closely and—believe it or not—we will bring it back to Parliament by some means or other if we find that the bail laws have been weakened.

Section 5 was not debated today. As Gordon Jackson said at a recent meeting of the Justice and Home Affairs Committee, temporary sheriffs are no more. In fact, when one examines section 5, one sees that there is still a place for temporary sheriffs. There is a continuing role for those who were appointed before enactment of this bill. Given the Starrs and Chalmers decision, that comes as a bit of a surprise. As ministers have not seen the need to change it, we will go along with it.

We have had a good debate on councillors today. It is right that we have paid tribute to many long-serving and capable JPs who were councillors. I am a little disappointed that the minister could not find a way to retain some of their knowledge and experience on the bench, but I would not want judgments at whatever level to be challengeable.

The failure to accept Roseanna Cunningham's amendment on the Lord Advocate and the Solicitor General being party to the appointment of those who will sit in judgment on prosecutions is a case of allowing poachers to appoint the gamekeepers. Difficulties may lie ahead.

Overall, time has been the enemy on the bill. Roseanna Cunningham said that it seemed as if it had been introduced three or four minutes ago. In fact, it will be a fortnight tomorrow since it was introduced. I do not think that that makes for good legislation. Ministers must consider that issue in respect of future legislation. I recognise that we are working under pressure from the European convention on human rights. It is pointless to hark back to that continually—it is in the past and we must look to the future. We must ensure that our law conforms so that no more verdicts and decisions of our courts are challenged.

In respect of the need for haste and our support, I refer members to the case last week in which a person involved in the drugs scene was discharged because the case was time barred. That is the last thing the Conservatives want and it is one reason why we are supporting implementation of the bill today.

Scott Barrie (Labour, Dunfermline West)

I do not know whether I am speaking only for myself or for all members of the Justice and Home Affairs Committee when I say that I was hardly filled with great excitement when I discovered that the committee was to discuss something called the Bail, Judicial Appointments etc (Scotland) Bill, but the subjects that we have discussed and that have been introduced by what in a few minutes' time will become an act are vital.

We have heard that the changes to the bail procedures in Scots law are necessary to bring us in line with the ECHR and to ensure that our bail procedures are robust and are able to stand up to the highest scrutiny. We have also heard, in committee and from the Deputy Minister for Justice in Parliament, that that will not affect the standards of bail decisions or lead suddenly to vast numbers of people being granted bail who previously would have been refused it.

We have also heard about the Starrs and Chalmers decision which, although it was predicted, has caused difficulties in our courts in the past few months. It is clear that we needed legislation to address those problems; now that it is in place it will be welcomed by everyone who is committed to an effective criminal justice system.

Roseanna Cunningham was right to say that it is perhaps surprising that the sections of the bill that caused if not the most controversy, certainly the most discussion, were those that dealt with councillor JPs. We discussed that issue extensively this morning. I would like to reiterate the remarks that I made when we discussed Phil Gallie's amendment in committee. People cannot have it both ways: either they can criticise the Executive for not anticipating something or they can criticise the Executive for trying to anticipate something. In this case, the Executive is rightly anticipating a possible challenge and is heading it off before it can become successful. The Executive should be congratulated when it gets something right and on this occasion I believe that it has got it right. There is another issue about the principle of whether councillors should sit as lay justices, but that is a separate argument. The legal argument was worth having and the right decision has been taken.

The bill is necessary. I am glad that we have been able to get it through the committee and the Parliament as quickly as we have. The maxim that rushed legislation is always bad legislation is not true. Although the bill has gone through the parliamentary process is remarkably quick time, it is not a bad piece of legislation. Rather, it is necessary legislation that will be welcomed.

Angus MacKay (Labour, Edinburgh South)

It is probably agreed on all sides—notwithstanding specific concerns—that the bill to which we are about to agree is necessary and urgent. I would like to put on record my gratitude to everyone who participated in the various debates that we have had, particularly the Justice and Home Affairs Committee for its constructive and tolerant approach to our proposals.

I will deal briefly with a point that was left over from our earlier discussions. Phil Gallie raised a question about bail exclusions. At the time, I did not have an opportunity to address the matter. It is not a question of the Executive sticking a finger in the air to gauge whether bail exclusions are a problem; the bail exclusions have already been repealed in England and Wales, for good reason. Following the case of Caballero v UK last year, the UK Government conceded that there was a breach of the ECHR. That case made it absolutely clear that the law had to be altered specifically in relation to bail exclusions. It is not a matter of just guessing and maybe thinking that we have a case to answer; the matter is founded in case law. We know that we are in breach of the ECHR and we have to do something about it.

Phil Gallie (Conservative, South of Scotland)

The minister refers to a case that took place last year. Here we are, just a fortnight after introducing a bill to redress the matter, passing the bill. It seems that an awful lot of water has passed under the bridge, given the comments that the minister has just made.

Angus MacKay (Labour, Edinburgh South)

The bill is not just about bail; it is also about judicial appointments. It brings a number of issues together. One of the relevant judgments emerged only relatively recently. That is why the bill has been somewhat delayed.

We cannot pick and choose on compatibility with the ECHR—we either sign up to it or we do not. We can try to develop effective legislation that is compliant but which also protects our communities and their interests. The bill will provide legislation that achieves that.

I have detected a degree of movement, if nothing else, in the Conservative party's position on the ECHR during the discussions on the bill. Initially, we heard from Conservative members statements that were quite difficult to reconcile with the position of the UK Conservatives as expressed at Westminster. The tone of the Conservatives' comments seems to have softened.

If we are to participate in the ECHR with countries such as France, Germany, Italy, Spain and Sweden—as we, in Europe, would expect to do—we have to be a bit more enthusiastic about what its provisions deliver and what we have to do to comply. We must also recognise that if countries such as Albania, Andorra, Cyprus, Estonia, Liechtenstein and Moldova can cope with the ECHR, can comply with it and can give it due process in their law, it should not be an excessively onerous challenge for this country to do likewise. I hope that we have moved the debate on in that respect.

It was important to get the bill on the statute book as quickly as possible. For that reason, the normal process of consultation and of the parliamentary passage of the bill has, I fairly and openly acknowledge, been rushed. That was because we were responding to judicial decisions and because of the fast approach of the summer recess. That made the speed of the legislative process unavoidable. I repeat that, while that was unavoidable, it was not desirable. The Executive will do its best to avoid having to put so much pressure on the committees, on the Parliament—

Roseanna Cunningham (Scottish National Party, Perth)

And ministers.

Angus MacKay (Labour, Edinburgh South)

And on ministers in the future.

Having said that, the bill has highlighted the importance of the work done by the committees in scrutinising legislation. The Justice and Home Affairs Committee and the Subordinate Legislation Committee both did sterling work in considering the bill at very short notice. They made important, detailed recommendations that the Executive was happy to take on board. We were able to lodge amendments to meet the points that were raised and the bill in its final form is, I have no doubt, better for them.

Although the Bail, Judicial Appointments etc (Scotland) Bill is limited in scope, it is a very important measure. It will bring various aspects of our criminal law into line with the ECHR. I have noted some of the points that have been raised in today's discussions that were not dealt with in the bill, and I am confident that we will return to some of them on another occasion. I commend the bill to the Parliament.

Patricia Ferguson (Labour, Glasgow Maryhill)

The question on the motion to pass the bill will be put at decision time.

National Parks (Scotland) Bill: Stage 3

Patricia Ferguson (Labour, Glasgow Maryhill)

The next item of business is stage 3 proceedings on the National Parks (Scotland) Bill. We will follow the same procedure as in our stage 3 consideration of the Bail, Judicial Appointments etc (Scotland) Bill. We will first deal with amendments to the bill and then move to a debate on the question that the bill be passed.

Members should have in front of them the bill, as amended at stage 2—SP bill 12A—the marshalled list, which contains all the amendments that have been selected for debate, and the groupings that have been agreed.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

On a point of order, Presiding Officer. I understand that amendments 17 and 18, which I lodged, have not been selected. Although I appreciate that the Presiding Officer has unfettered power over the selection of such items, the non-selection of the amendments about a local referendum does not comply with the guidance, as the amendments raise a matter of principle that it is important to debate.

Patricia Ferguson (Labour, Glasgow Maryhill)

You are absolutely right about the duties and responsibilities of the Presiding Officer, Mr Ewing. However, I refer you to paragraph 4.9 of the "Guidance on Public Bills", which says:

"Although the Presiding Officer receives advice from the clerks on aspects of selection, the decisions involved are entirely for him to make, given the political sensitivity they may involve."

The Presiding Officer is perfectly within his rights in this case.

David McLetchie (Conservative, Lothians)

On a point of order, Presiding Officer. This is the second occasion in this Parliament on which members have been denied the opportunity to debate issues of principle. One hundred and twenty-nine people were elected to this Parliament to decide matters, not 11 people in a committee. As this is the second time that this situation has arisen, I invite the Presiding Officer to have the matter reviewed by the Procedures Committee at the earliest opportunity.

Patricia Ferguson (Labour, Glasgow Maryhill)

As you are aware, Mr McLetchie, it is open to any member, not just the Presiding Officer, to refer matters to the Procedures Committee. You may do so if you wish.

Christine Grahame (Scottish National Party, South of Scotland)

On a point of order, Presiding Officer. I have raised this matter in a letter to the Procedures Committee. I hope that the committee will address the issue after the summer recess.

Patricia Ferguson (Labour, Glasgow Maryhill)

Thank you for that information.

Patricia Ferguson (Labour, Glasgow Maryhill)

We move to amendment 1, which stands on its own. I call the minister to move and speak to the amendment.

Sarah Boyack (Labour, Edinburgh Central)

In the National Parks (Scotland) Bill as initially introduced, the third aim of the national parks was

"to promote understanding and enjoyment of the special qualities of the area by the public".

We have always taken the view that recreation, which will be an important reason for many members of the public to visit national parks, was covered by the word "enjoyment".

However, at stage 2, the Rural Affairs Committee strongly felt that that should be made explicit and that the term "recreation" should appear in the bill. As a result, an amendment from Fergus Ewing was accepted with the Executive's agreement. That gave rise to the current wording of the third aim, which is

"to promote recreation in, and understanding and enjoyment of the special qualities of, the area by the public".

Since stage 2, we have examined the wording that results from this amendment more closely. It has become clear that inserting the term "recreation" in such a way does not ensure a link between "recreation"—as against enjoyment—and the special qualities of the area. Amendment 1 guarantees that link while retaining the important term "recreation", and clarifies that the term is included in "enjoyment". National parks will promote enjoyment, including recreation, of the area's special qualities, which refer to the area's natural qualities or natural and cultural qualities. Those qualities are the purpose behind the national park designations.

It is important to take a balanced approach to promoting the enjoyment of the special qualities for which national parks are being established. The importance, attractiveness and contribution of those special natural and cultural attributes to the promotion of enjoyment will be crucial in determining what forms of sport and recreation should be considered in national parks. Above all, it is important that the recreation permitted should be appropriate to, and not detract from, the national park's special qualities. That is why it is absolutely critical to agree to this amendment.

I move amendment 1.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I should start by declaring an interest, which might be shared by my colleague Michael Matheson. At the weekend, we participated in some recreation—the Corrieyairick challenge—in a proposed national park area. Unfortunately, I think that I was bringing up the rear, whereas Mr Matheson was towards the fore.

I am pleased to support the Executive's amendment, which puts in context the importance of recreation in national parks. It was pleasing to see that, at stage 2, my amendment was accepted by the Executive. It is important that, in every national park that is envisaged, recreation is seen as something that is positive and that national park authorities should encourage, with particular regard to the needs of children and those with a disability.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

When I first read the amendment I was puzzled, because all it seems to do is to change the wording so that unenjoyable recreation is excluded from the bill. I wondered what unenjoyable recreation might be but—given that I have been on some hill walks where it started to rain when we set off and six hours later we came back not having seen anything from the top of the hill because it was still raining—perhaps that is what the bill is getting at. Having heard the minister's explanation, the SNP is glad to support the amendment.

Murray Tosh (Conservative, South of Scotland)

Fergus Ewing amended this section in committee. I am sure that that is not why the minister has moved to amend the amended section. The amendment was adequately and carefully explained and the Conservatives will support it.

David (None, Lothians)

I presume that the minister does not wish to say anything more.

Sarah Boyack (Labour, Edinburgh Central)

No.

Amendment 1 agreed to.

David (None, Lothians)

Amendment 2 is grouped with amendment 5. I call the minister to move amendment 2 and to speak to both amendments.

Sarah Boyack (Labour, Edinburgh Central)

Amendment 2 inserts at section 2(2) a new subsection, which adds to the list of matters to be considered by a reporter in considering a national park proposal. The new addition covers the financial implications of running a national park in terms of the likely annual costs and capital expenses of the national park authority in exercising its functions.

Rhoda Grant lodged a similar amendment at stage 2, which stimulated a good discussion in the Rural Affairs Committee. We promised her and the committee that we would reflect on the matter and bring forward an appropriate amendment. That is the purpose of this amendment. Finance is an important issue and we agree that the costs of a national park are elements in any decision on the designation of a national park. We have lodged this amendment to make the annual costs and capital expenses of the proposed national park a factor for consideration by a reporter.

Those costs could include the amount of money needed for an estimated staffing level and an estimate of how much money would be required for potential capital projects—for example, how much it would cost for repairs to a section of the west Highland way. Of course, those could only be estimates, as we would be able to have a final budget only when the boundaries and powers of a national park had been identified. Resource estimates could not be set in stone, but it is important that they are made, so that they can inform subsequent debate.

Like any other public body, national parks will be subject to the annual expenditure round when their budgets are agreed. All public spending has to be approved by the Parliament and we have made it clear that the core funding comes from Scottish ministers. That is provided for by the bill.

Amendment 5 mirrors amendment 2 and is required to add consistency to the bill. It ensures that, if Scottish ministers decide to prepare a statement under section 3, they must give an estimate of the likely financial implications for the national park.

I move amendment 2.

Rhoda Grant (Labour, Highlands and Islands)

I am pleased that the minister has lodged amendment 2. As she said, I had concerns about this matter at stage 2, when I was told that an amendment would be brought forward. I welcome the amendment. Although I find it inconceivable that it would be possible to propose a national park without considering the financial implications, it is important that the bill should include such a requirement.

It would also be helpful to identify the costs of other agencies—for example, local authorities and enterprise companies that work in a national park area. I am talking not about the costs that they might have if they had representation on the park board, but about the additional costs that they might have by providing services within a park area. The report may have to look into that. Identifying such costs might not be possible until the park board is set up, but it should be borne in mind.

Murray Tosh (Conservative, South of Scotland)

I accept the minister's explanation for the amendment. It appeared to be unnecessary, in that the concerns are covered by paragraph (d) of subsection (7), which refers to

"such other matters relating to the proposal as the requirement may specify".

In a sense, therefore, the amendment is declaratory. However, it helps that it is made clear that the financial implications for the park authorities will be specified in the bill.

Rhoda Grant made a good point about laying out the requirement to specify some of the costs to local authorities. Especially in instances when planning powers are split between local authorities and park authorities, there may be additional costs. The entire function will not be passed over to park authorities, which may have financial and other implications for local authorities. It would be useful if additional costs to local authorities were identified and laid out at the report stage.

On the declaratory element of the amendments—both of which we will accept—there are also declaratory elements in the wording of section 9. When we come to debate what the bill says about community councils, we will argue that there are instances where an element of declaration of intent is helpful, not only in providing good legislation, but in ensuring that there is good understanding of that legislation.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

I welcome the provisions. In future, those who oppose the establishment of a national park may use the financial consequences as an argument against it. It is useful that financial information will be available to lance such an argument in advance.

Amendment 2 agreed to.

David (None, Lothians)

Amendment 21 is grouped with amendments 22, 3, 4, 23, 24, 6, 14, 25 and 19. I call Ben Wallace to move amendment 21.

Ben Wallace (Conservative, North East Scotland)

It is important to involve local communities at the initial stages of the proposals for national parks. Community councils should be involved, not only in the process of consultation, but from the outset, when the reporter puts down the outline.

Although I acknowledge that amendments 22 and 24 are no longer appropriate—I will not move them—I lodged amendments 21 and 23 to ensure that, from the outset, the reporter informs community councils about any national park proposals.

I move amendment 21.

Elaine Murray (Labour, Dumfries)

By saying that he will not move amendments 22 and 24, Ben Wallace has stolen my thunder somewhat. The declaration of intent that Murray Tosh referred to already exists in the requirement for consultation with community councils and in the requirement placed on local authorities to make the proposals available for public inspection.

As an addendum to that, many opportunities are presented by the use of information and communications technology. We have debated the use of ICT in public services at other times—I hope that national park plans and so on will be made available on the internet, so that members of the community can access them and comment on them.

Murray Tosh (Conservative, South of Scotland)

When we discussed this matter at the Rural Affairs Committee, Ben Wallace was unable to attend—I believe that there was a clash of dates with the European Committee. I did not press the amendments because, in a full and helpful discussion, ministers indicated—I think that it was Mr Stephen who took the debate at that point—that the Executive would lodge an amendment at stage 3 to address the points of concern expressed by the committee.

Our principal concern was that, in circumstances in which, for whatever reason, relationships are not good between community councils and local authorities, we felt that it would be appropriate for community councils to be involved to the extent that they had the right to receive a copy of all the proposals directly from the Scottish Executive, rather than through the good offices of the local authority. I spoke of having been a community councillor under a local authority that did not involve community councils in much of what was going on.

I assume that amendment 3 is the Executive's way of dealing with that concern and that it will specify that community councils are to be involved. If that is what it means—and if it has that effect—I welcome the amendment. I still cannot grasp what is wrong with specifying in the bill an entitlement for community councils to be given the report up front as an obligation on everyone else involved in the process. Community councils are part of the statutory system of local government; they are an important form of local representation and local lobbying. There is something peculiar about not including them as of right, especially as they are mentioned in other respects in later sections of the bill.

I ask ministers to consider whether there is merit still in what Ben Wallace has proposed by the simple insertion of the requirement that the reporter must send a copy of the report to every local authority and community council. What is desperately wrong with that? Is not that a reasonable thing to ask for? I ask ministers to give further consideration to the matter.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

I understand the point that Ben Wallace and Murray Tosh are making, especially as community councils are referred to in a later section of the bill, as has been said. I suspect that the argument hinges on the balance of precisely how much bureaucracy one actually builds into the bill. There is perhaps a danger of building in too much, and I would be interested to hear whether that is one of the minister's objections to amendment 21.

I do not think that anyone would make the accusation that the process of consultation in the bill is anything other than open. There is no problem with that process that especially needs to be addressed. I suspect that the amendments may just be a step too far, but I would be interested in the minister's explanation of why she does not wish to accept the amendments.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

The amendments are not appropriate. The bill as it stands is much better. The subparagraph that amendment 22 seeks to replace says that the reporter must, on receipt of the National Park proposal, consult

"every community council any part of whose area is within the area to which the proposal relates".

That is much stronger than the amendment.

Murray Tosh (Conservative, South of Scotland)

On a point of order. It may assist Mr Rumbles if he were to realise that the amendment to which he is addressing his remarks is the one that Mr Wallace indicated he would not move. We are, in fact, pressing only those amendments that insert "and community council" after the words "local authority".

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

I appreciate that, but the same point tends to apply.

Ben Wallace was not at the Rural Affairs Committee—nor, I believe, was Alasdair Morgan—when it was said that the amendments would put increased responsibilities on community councils. I will be interested to hear what the minister says about that.

Sarah Boyack (Labour, Edinburgh Central)

I will address Ben Wallace's amendments first. I assure him that we have thought about the issues that are raised by his amendments, but we remain of the view that the amendments are not necessary. Further than that, we believe that the amendments would have serious disadvantages. I will pick up on all those points, but I want first to provide the reassurances that Ben Wallace needs. I hope that he will then be able to agree not to press his amendments.

The aim of Ben Wallace's amendments is to ensure that community councils will receive copies of the consultation documents that the bill provides for. There is no legal necessity for a requirement that a copy of the consultation document be sent to a community council, or any other consultee. Community councils, along with others, are specified in the bill as consultees. The legal position is quite clear. The essence of consultation is communication of a genuine invitation to seek advice and comments, giving a fair time to respond and giving genuine consideration to such comments. For consultation to be real, sufficient information about the proposal must be given to inform a considered response. The bill achieves that as it stands.

I take the point, made by Alasdair Morgan, about cluttering up the bill with amendments that are not required. If further reassurance is required—as I suspect that it is—I should add that Executive amendment 3 provides for Scottish ministers to issue directions to a reporting body about the conduct of its consultation. I am happy to confirm that we will use that to remind any reporters of their duties in respect of sending consultation documents to statutory consultees. The reporter will be required to do that, not the local authority. That clarification might be helpful to Murray Tosh.

I will focus briefly on what the drawbacks of Ben Wallace's amendments would be. The local authorities receive a copy of the proposal and the requirement under section 2(5)(a) because they are under a statutory duty to make them available for public inspection; community councils are not. Executive amendment 4 makes the link explicit and clear.

A requirement on the Executive to send a copy of a proposal and a requirement to community councils would raise the question why that requirement was in the bill, given that it is not stated in respect of other consultees mentioned in the bill or in other statutes. Singling out community councils for special mention creates a legal implication that there is no corresponding requirement in relation to other consultees.

The Town and Country Planning (Scotland) Act 1997 requires that, when a planning authority has prepared a structure plan, it must consult any other planning authority likely to be affected by the plan before submitting it to Scottish ministers for approval. There is no requirement to send a copy of the plan to the consultees, but it would be inconceivable that that would not be done or that the consultees would stand for it not being done.

I hope that I have reassured Ben Wallace that community councils are already guaranteed copies of the consultation documents provided for in the bill. That guarantee comes from the bill's provisions and from the directions that we will give to the reporters through amendment 3.

I suspect that the consequences of Ben Wallace's amendments are entirely unintended. However, they could have damaging knock-on effects for other parts of the bill and other legislation. I hope that he will agree not to press his amendments.

Executive amendment 3 will ensure that consultations undertaken by the reporters on a national park proposal have the confidence of those who will participate in them. The amendment is the Executive's response to amendments that were lodged at stage 2 by Rhoda Grant and John Farquhar Munro, who proposed that the consultations should be fully participatory and undertaken on the basis of the planning-for-real exercises. Amendment 3 allows the Scottish ministers to issue directions to the reporters, with which they must comply, on how the consultations are to be carried out.

We already have a compact agreement with the voluntary sector, which details the Executive's policy and guidance on consultations with that sector. The compact agreement provides the basis for the directions that will be given to the reporters and commits the Executive to consult the voluntary sector through a range of good-practice measures. Those measures include: planning consultations with the voluntary sector; taking account of the full range of different types of consultation process; taking soundings early in the process; and setting a minimum period of three months for all consultations, which is a practice that we have adopted throughout the bill.

The agreement also makes commitments to consult widely, to give due consideration to all responses and to pay particular attention to those most affected by the proposals. The compact agreement is widely available and I assure all members that the directions that will be given to the reporters will have to adhere to the commitments made in that agreement.

Having given those commitments and assurances, I hope that everyone who is affected by the consultations will have confidence in their integrity.

I move amendment 3.

David (None, Lothians)

No, minister—you are speaking to amendment 3.

Sarah Boyack (Labour, Edinburgh Central)

Amendments 4, 6, 14 and 19 are technical amendments to sections 2, 3, 5 and 11 respectively. We have lodged those amendments after considering the discussion at stage 2 on a group of amendments lodged by Ben Wallace. I hope that members find the Executive's amendments satisfactory. We have considered the points made when Ben Wallace's amendments were discussed at stage 2 and, having done so, I recognise that the bill's provisions were probably not as clear as they were intended to be. I hope that our amendments will clarify matters.

I will focus on section 2 as an example, in order to explain the point. The bill is drafted in such a way as to deal separately with three distinct strands of the process that is set out in section 2(5), in order to create clear and separate duties. Subsection (5)(a) and subsection (6) provide for the public inspection of consultation documents. Subsection (5)(c) requires the consultation to be publicised and subsection (5)(d) provides for the act of consultation. Subsection (6) requires the local authority to make copies of the national park proposal available for public inspection. That is a sensible way of ensuring that, despite all the other ways of publicising the consultation, everyone has access to the documents. The bill achieves that by referring back to subsection (5), which includes, among other provisions, a duty to send the consultation document to all relevant local authorities. However, the reference to subsection (5) must be more precise.

I know that Ben Wallace has agreed not to press a couple of his amendments, but I hope that, with the assurances that I have given in those detailed comments, he will agree not to press any of them. We have considered in great detail the comments made by a number of members at stage 2 and I hope that the Executive's package of amendments will deliver what every member of the Rural Affairs Committee wanted.

I move amendments 4, 6, 14 and 19.

David (None, Lothians)

Let me clarify this. Only one amendment is moved at a time. The other amendments will be moved later at the appropriate time. Amendment 21 has been moved. Ben Wallace will have to tell us what he wants to do with it.

Ben Wallace (Conservative, North East Scotland)

Having heard the minister's assurances, and in addition to not pressing the amendments that I mentioned, I would like to withdraw amendment 21, as well as amendments 23 and 25.

David (None, Lothians)

You can tell me about the others later. I am interested only in amendment 21. Are you asking leave to withdraw amendment 21?

Ben Wallace (Conservative, North East Scotland)

Yes.

Amendment 21, by agreement, withdrawn.

Amendment 22 not moved.

Amendment 3 moved—[Sarah Boyack].

David (None, Lothians)

The question is, that amendment 3 be agreed to. Are we agreed?

David (None, Lothians)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

I realise that members are not allowed to raise a point of order during a division, but my understanding is that the logical consequence of amendment 21 being withdrawn is that amendment 3 must be agreed to.

David (None, Lothians)

I listen only to what members say. If members shout "No", I must call a division. I will not intrude into private grief. There will therefore be a division.

David (None, Lothians)

The result of the division is: For 98, Against 3, Abstentions 0.

Amendment 3 agreed to.

Amendments 4 and 5 moved—[Sarah Boyack]—and agreed to.

Amendments 23 and 24 not moved.

Amendment 6 moved—[Sarah Boyack]—and agreed to.

David (None, Lothians)

We come now to the group for which the lead amendment is amendment 7.

Nicol Stephen (Liberal Democrat, Aberdeen South)

Amendment 16 is the major Executive amendment in this group. The rest of the Executive amendments are minor and technical, and are intended to add clarity to the bill.

In the original draft bill it was proposed that there should be only four stages in the designation process: the initial national park proposal, a public consultation on that proposal, a published report and, finally, the laying of a draft designation order before Parliament. In response to concerns expressed by the Rural Affairs Committee and the Subordinate Legislation Committee, the Executive introduced amendments to the bill at stage 2 and the further amendments that are before members today, to strengthen public consultation and the involvement of Parliament in the process.

There will now be six stages in the designation process, and at certain points there will be strengthening of those stages. The first stage is now the initial national park proposal, on which there will still be public consultation, to be followed by a published report. Then come the new stages that we have introduced. The proposed designation order will be published, and there will be a public consultation on it. There will be a duty on ministers to take into account the views received during that consultation. Ministers will then have an opportunity to amend the proposed designation order before finalising it. Finally, there will be a statement or a report on the consultation to Parliament and the draft order will be laid.

It is clear that there have been significant changes to and strengthening of the public consultation process and the involvement of Parliament in it. Section 5 of the bill was amended at stage 2. The Executive amendment at that stage, which was lodged in response to the concerns that I have described, provided for a wide consultation on the proposed designation order. Previously, as I have said, there was nothing of that nature in the bill. In the light of comments received on the proposed designation order, the Scottish ministers could amend the order prior to laying it before Parliament for consideration as an affirmative instrument. The Parliament will, therefore, have an opportunity to consider the statutory instrument. The 12-week consultation process provides the public with an opportunity to make comments and for any relevant parliamentary committee to take evidence and report its views. It is important to underscore that. The Rural Affairs Committee and other committees will have an opportunity to get involved in the consultation process. It will be for them to decide whether they wish to get involved and, if so, how.

Amendment 16 is an additional Executive amendment being brought forward today to give further strength to the consultation process. It puts a duty on the Scottish ministers to lay a statement on the consultation at the same time as they lay the final proposed designation order—the draft designation order as it will technically be known. This statement will include the views and comments received in the consultation process and how, if at all, the draft designation order has been amended in the light of consultation comments. This ensures that there is transparency in the process. It will help to inform the debate in Parliament when it is deciding whether to approve the draft designation order through the affirmative process.

Amendment 9 puts right an omission from the Executive amendment at stage 2. It ensures, in keeping with consultation provisions elsewhere in the bill, that when the Scottish ministers go out for consultation on a proposed draft designation order, a copy of the draft is laid before Parliament.

As I have said, the rest of the amendments in this group add clarity to the bill. They describe draft designation orders, which are sent out for consultation, as proposed draft designation orders to distinguish that stage of the draft from the affirmative draft laid after the consultation process has been completed.

I have extensive notes on amendment 28, in the name of Mr MacAskill. Unfortunately, he was not present during the stage 2 debate on this issue, when a similar amendment in his name was moved by Irene McGugan. I will keep my remarks short and say that, in my opinion, what Kenny MacAskill and the Subordinate Legislation Committee were trying to achieve has, in essence, been achieved by the Executive amendments that have been brought forward at stages 2 and 3.

I appreciate that Mr MacAskill is going about the process in a different way, but we have now provided for a wide consultation process on a proposed designation order, before the designation order is formally laid before Parliament. I hope that Parliament will agree that this process is the right way to go about it. There are some differences in what Kenny proposes, but we have moved a long way from what was proposed at stage 1.

I move amendment 7.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

I will comment on amendment 16, which is the main amendment. It is important for the integrity of the consultation process that this amendment is accepted by Parliament.

I will make one additional comment. In future, when the Executive publishes the reasons why changes were not made after the consultation process, could those reasons be publicised? Past experience has shown that it is helpful if the reasons for not doing something that becomes a major issue in the consultation process can be explained.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

We welcome all the steps that have been taken to ensure that consultation should be as wide as possible when we consider the designation orders and that that consultation should engage the public. However, it is most unfortunate that the Executive has not accepted the case for there to be the ultimate form of consultation, by asking the people who live and work in a national park area whether they agree that they see the benefits of a national park.

Nicol Stephen (Liberal Democrat, Aberdeen South)

rose—

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I will give way in a minute, minister. Members in this chamber may not realise that there are no fewer than 17,100 people in the Cairngorms Partnership area—that is a lot of people. I believe that the ultimate form of consultation is a referendum. Anyone who is a democrat—whether a Liberal Democrat or any other type—must welcome the possibility of holding a referendum to ask people whether they agree that they wish to be part of a national park. That is true consultation.

I will be happy to give way to the minister, who will no doubt explain why he is not in favour of this aspect of democracy.

Nicol Stephen (Liberal Democrat, Aberdeen South)

It is important to remember that we are talking about national parks rather than local parks.

The issue was fully debated at stage 2, at which time there was an opportunity for Mr Ewing to put across his arguments in favour of a referendum. As I recall, the result of the vote on the matter—which members of the SNP took part in—was eight to zero against having a referendum.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

I must correct the minister: the vote was not as he said. I believe that there were two votes from my colleagues in favour of a referendum. I have since become aware that members of another party would have been minded to support the idea if it had been permitted for debate today. I accept the Presiding Officer's ruling, but I will say that it is unfortunate that we do not have the opportunity to debate matters of principle at stage 3.

I do not want to dwell on the matter, as the point has already been made. A referendum would have been a positive process and, if the Executive had taken advantage of it, the national park proposal would have started off with the opportunity of securing the endorsement of the people who must accept the benefits or otherwise of national park status.

Kenny MacAskill (Scottish National Party, Lothians)

Amendment 28 seeks to ensure adequate democratic scrutiny in this chamber. It is meant to enhance the input of Parliament and parliamentarians. For the benefit of the Executive, I will say that it seeks to do so within the bounds of the existing Scotland Act 1998. It does not detract from the Executive amendment; indeed, it adds to and complements it. It ensures greater scrutiny and interaction from the Parliament. The Executive amendments ensure greater interaction and scrutiny from the public. We are trying to replicate the opportunity for parliamentarians to take part in the consultative process before matters proceed.

I am speaking to the amendment not as a member of the SNP but as the convener of the Subordinate Legislation Committee. This is not a committee amendment, but I point out that the suggestion for a super-affirmative procedure was carried unanimously in the committee and continued to receive the complete support of the committee even upon review at later stages.

I should indicate that subordinate legislation is an important part of the democratic process. If every matter that we deal with had to go through stages 1, 2 and 3 in the Parliament, we would make no progress. Clearly, there is a need for speedy methods of dealing with matters that will not be opposed in any way. I do not want to rehash the arguments about whether national parks should have proceeded by way of enabling legislation. The fact is that subordinate legislation is, in the main, non-contentious. That is shown by the number of occasions on which members of the Parliament have used their powers to move against any statutory instrument that has appeared.

A problem arises only when enabling legislation is used for matters that will be complex. We will spend all afternoon on this bill. We have had debates on the bill in numerous committees and in this chamber. The difficulty is that we have not yet decided where a national park will be, what its boundaries will be, what its geography and domain will be, who will be a member of the national park's authority, nor how those members will be elected. Many important issues still have to be examined.

There has to be local democratic input, but there also has to be a way for those who represent areas that are not in the park area to progress matters and participate. That will not conflict with the ability of the Executive to move matters speedily and with efficacy; it will still be able to do that. Even with a super-affirmative procedure, this Parliament will be left only with the ability to say yes or no to a proposal, either to move against it or to accept it.

My amendment would focus matters for representatives of all airts and pairts of Scotland. I welcome the additional mechanisms to provide consultation at local level, but I believe that members of this Parliament should also have the opportunity to take part in the consultative matters. That will ensure that, when subordinate legislation goes through this Parliament, it will be focused. We will know what people are commenting on and will have before us the Executive response. Members will still be left with either a yes or a no, but at least they will have a better view of what is being debated.

This amendment enhances the democratic process—and the democratic nature of this Parliament—and adds to the powers that we should have. It does not detract from the ability of the elected Executive to process speedily matters for which it has already obtained the enabling powers.

Murray Tosh (Conservative, South of Scotland)

As a rule, I try never to agree with Kenny MacAskill in this chamber: it makes for a livelier debate when I do not. However, this afternoon I support Mr MacAskill's amendment. It is not an SNP amendment, but one that he is moving in his capacity as the convener of the Subordinate Legislation Committee.

In many respects, it is a great pity that we have to go through the stages of primary and secondary legislation to establish only two or—at the outside, and allowing for a few more years to pass—three national parks. We have debated that issue in the Transport and the Environment Committee, and the reasons for it are well known. Nevertheless, the fact is that this Parliament has surprisingly little direct input into the ultimate process.

I am not detracting in the slightest from what Nicol Stephen said in his opening remarks. It is clear from the amendments that the Executive lodged at stage 2 and this afternoon that it has listened to what was said on that point at stage 2 in the Transport and the Environment Committee, and that it has taken those views into account. I am happy to support the amendment that Nicol Stephen has spoken to this afternoon, along with the other amendments that have been lodged—not least amendment 9, which provides for the laying of documentation before the Parliament.

When we debated this issue in the committee, I moved a couple of amendments that were designed to bring the report before the Parliament, not in the sense of laying it before the Parliament—which would mean only that we would receive another booklet in our mail—but to seek the endorsement of the Parliament by resolution. The aim of my amendments was not to frustrate the Executive's intentions, nor to operate in a hostile manner toward the bill, but to draw the Parliament further into the process and to give its parliamentarians a greater say.

This debate has been substantially shaped by 11 members, plus a couple of visitors to the Rural Affairs Committee. Some might say that this bill has been substantially shaped by one member, whom I presume will speak to further amendments later this afternoon. The rest of the Parliament has not been deeply engaged in the processes or debates. My fear about using subordinate legislation as the means to implement all the details at later stages is that the Parliament as a whole will not engage in the debate and will not be fully aware of the issues. At the final stage, when it is necessary to approve a statutory instrument, relatively few people will have been engaged in that process.

Mr MacAskill's amendment, which is not hostile in any way, would allow the Parliament a greater role and would require the Executive to listen and respond to the points that members make. As Kenny pointed out, there is no procedure for the Parliament to amend the designation order stage by stage. Amendment 28 will allow concerns to be expressed more clearly at the designation order stage, and will give local members—who might have serious points to make about the precise designations of boundaries and powers—the opportunity to bring those concerns before the Parliament. At that stage, the Parliament could be informed and involved, and its support could be sought in attempting to influence the final orders.

That is what is at stake here. The amendment is not trying to spike the national parks or frustrate the Executive's intentions—I repeat: I accept the Executive's amendments and commend them—but is about involving the Parliament and giving it a greater say. Kenny MacAskill has made a good point this afternoon. If, in the spirit of the consultative steering group principles, ministers are genuinely seeking to share the power, this is an area in which they should seek to share the power with the Parliament. There is nothing in amendment 28 that ministers need to fear, but there is a lot to commend it. Therefore, I ask members to support amendment 28 when Mr MacAskill moves it.

Nicol Stephen (Liberal Democrat, Aberdeen South)

It is unfair to suggest that only a small number of individuals have been involved in the development of these proposals, as a wide range of MSPs and others have been involved.

Members who were not members of the Rural Affairs Committee or the Subordinate Legislation Committee attended meetings on the bill. Many of them spoke eloquently and at great length at those meetings. We should recognise that the bill is the result of a very wide consultation process and that it has been met by a great deal of unanimity. There is a high level of support across Scotland for the proposals. We should welcome that.

The issue is whether we should go further than the current procedures go. I have explained that we have gone far further than was envisaged at stage 1. There has been a significant move. A whole new stage has been introduced and the level of public consultation has been widened. The issue is whether we adopt what has been called a super-affirmative procedure. Such a procedure has been used only very rarely. In the instance of which I am aware, it gave very sweeping and wide-ranging powers to ministers. I do not think that it is appropriate in every instance, although it is up to Parliament to judge when it is appropriate.

There is no doubt that the Parliament will wish to return to this issue. It will be discussed by the Procedures Committee and the Subordinate Legislation Committee. I have no doubt that over time, and quite appropriately, the procedures of the Parliament will develop. For the purposes of the bill, we have gone a long way to answer the concerns that exist.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

The minister said that one of his objections to the super-affirmative procedure was that it gave sweeping powers to ministers. I do not understand how that can be an objection to amendment 28. Rather than giving sweeping powers to ministers, that amendment gives Parliament some way of checking those ministers. Can the minister come up with a better argument?

Nicol Stephen (Liberal Democrat, Aberdeen South)

Alasdair Morgan misunderstands me. The super-affirmative procedure was introduced in a Conservative piece of legislation. Ministers were given sweeping discretion by that legislation to introduce statutory instruments that affected existing legislation. Therefore, the extra reassurance of the super-affirmative procedure was introduced. The bill is a different kind of legislation, for which a super-affirmative procedure is not necessary but for which the wide-ranging consultation process that we have introduced is entirely appropriate.

Amendment 7 agreed to.

Amendments 8 to 14 moved—[Nicol Stephen]—and agreed to.

Amendment 28 moved—[Mr MacAskill].

David (None, Lothians)

The question is, that amendment 28 be agreed to. Are we agreed?

David (None, Lothians)

There will be a division.

David (None, Lothians)

The result of the division is: For 38, Against 63, Abstentions 1.

Amendment 28 disagreed to.

Amendments 15 and 16 moved—[Nicol Stephen]—and agreed to.

David (None, Lothians)

We move to amendment 30, which is grouped with amendments 37, 41, 42, 43, 45, 27, 48, 53, 55, 59, 61, 62, 64, 66, 67 and 68.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

Legislating for national parks is one of the first major achievements of the Scottish Parliament and addresses an issue that could not be addressed in the 50 years since equivalent legislation was passed south of the border. The National Parks (Scotland) Bill has cross-party support and was agreed to unanimously at stage 1. As we have agreed the key principles of the bill, it can be seen that many of the stage 3 amendments are technical. Indeed, the 15 amendments in my name on the membership of the national park authorities have been lodged to ensure that what the Rural Affairs Committee agreed at stage 2 is translated into effective legislation.

Presiding Officer, you will remember that when the Rural Affairs Committee produced its stage 1 report, it said:

"The committee agrees that the principle of direct representation of local community interests should be guaranteed, and distinct from both the local authority nominees and those directly appointed by Ministers."

Those words were chosen very carefully and were endorsed by every member of the committee, from all four parties. We came to that clear conclusion as a result of carefully analysing the consultation process and by taking evidence from witnesses.

At stage 2, to achieve the aims of our stage 1 report, the Rural Affairs Committee decided to support my amendment to ensure that 20 per cent of the members of national park authorities would be elected directly by local people. Local representation was the most contentious issue identified by the Executive's consultation process. Part of my constituency lies in the area of the proposed Cairngorms national park and many of my constituents have approached me directly on the issue. My proposals for direct elections to secure local support for national parks are radical—an innovative departure from the normal way in which quangos are set up. I am convinced that such innovation will be successful. Is not our new Parliament radical and innovative? Is not this a manifestation of our new approach to doing things differently and better?

It took some people longer than others to come round to accepting the proposals and to recognising that the committees of this Parliament have a genuine, major role to play in the formulation and improvement of legislation. As we come to the end of the legislative programme in the first year of the Parliament's having its powers, what better example have we than this bill for demonstrating the effectiveness of the committee system? By instituting the direct election of at least 20 per cent of the membership of a national park authority, the Rural Affairs Committee has shown that radical improvements can be made to legislation.

There are concerns that direct elections could lead to politicisation, so I have framed my amendments to allow ministers flexibility in the practical arrangements for local polls. It is very important that those arrangements make it clear that politicisation should be avoided. I hope that the minister will comment on that.

I thank my colleagues on the Rural Affairs Committee for supporting my amendments at stage 2, and I hope that the Parliament will support my further technical amendments in this grouping today. I express my sincere thanks to ministers of both parties for giving their full support to the amendments that are before us. They are designed to ensure that the changes that the Rural Affairs Committee accepted at stage 2 are implemented properly and that the National Parks (Scotland) Bill becomes an effective, successful piece of legislation.

I move amendment 30.

Nicol Stephen (Liberal Democrat, Aberdeen South)

I am grateful to you for allowing me to speak at this stage, Presiding Officer. There are a number of amendments in the name of Mike Rumbles that the Executive supports, and it would be helpful to explain them in more detail at this point.

The majority of the amendments relate to the direct election of at least a fifth of the total number of members of the national park authority. On 13 June, at stage 2, the Rural Affairs Committee agreed to a number of amendments requiring direct elections for a fifth of the membership of the authority. Today's amendments refine those amendments and lay the foundation for a workable scheme of elections to be set out in subordinate legislation at a later stage.

The first substantive amendment is amendment 43, which increases the maximum number of members of a national park authority to 25. That is simply to recognise the arithmetical reality. If a fifth of the membership of an authority is to be directly elected, it is preferable for the maximum number of members to be divisible by five, and for the remaining number—20—to be divisible by two, to reflect the equal split between local authority and Scottish minister representation.

Amendment 45 reshapes subparagraphs (2) to (2D) of paragraph 3 of schedule 1, in order to make it clearer who would be entitled to vote in the direct elections—in other words, the local government electors of the national park area.

Amendment 53 inserts after paragraph 3 of schedule 1 a new paragraph containing further provisions about what an order that sets out a scheme of elections would contain. Those provisions are deliberately wide ranging, as, if the amendments are passed, the Executive will wish to consider carefully and to consult very widely on the detail and the kind of electoral system to be put in place.

The order-making power contains general provision about elections and candidates, with particular regard to such matters as the conduct of elections—whether postal or in person—the registration of electors, possible combination with other elections, dates of polls, appeals against the outcome of an election, and other similar matters.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Can the minister confirm that ministers will use that power to prescribe maximum limits of expenditure for each candidate? That concern was expressed by the Highland Council and by others. It is felt that some wealthy voluntary organisations might be able to take advantage of the system if such expenditure limits are not in place.

Nicol Stephen (Liberal Democrat, Aberdeen South)

The answer to Fergus Ewing's question is yes, as I shall outline shortly.

It is not essential for all the issues that I have mentioned to be covered by a particular order. Different orders could make different provisions, and could give different solutions for each park.

The remainder of the amendments lodged by Mike Rumbles are technical and consequential on the main provisions. At stage 2, Mike Rumbles argued successfully in favour of the principle of a system of direct elections for some of the national park authority members. That was in response to widespread concern about the need for the greater involvement of local people in the running of each park. Direct elections are not the only way of achieving that aim, and the Executive amendments that were lodged at stage 2 remain, allowing for 20 per cent of the overall membership of the national park authority to be local members.

I do not want to comment in any detail on the kind of elections that might be introduced. This is a new concept and we must have full consultation, as people will have different ideas about how elections should be carried out. However, I should mention one or two general principles that are appropriate and that the Parliament can agree with.

In the main, we should try to depoliticise the elections and we should also avoid their being dominated by individual interest groups or individuals with significant wealth. We want to make them more like community council or school board elections. There should be appropriate limitations on expenditure. In Mike Rumbles's initial proposals, there would have been a close link between the elections and the date of the local authority elections. For some of the reasons that I have mentioned, I am glad that he is willing to break such a link.

We should carefully consider whether postal voting would be preferable to a system based on voting in person. Pilot schemes for all-postal local authority ballots in other parts of the UK, as recommended by the Howarth committee, have been considered very successful, particularly in increasing the proportion of the electorate voting. That can only be a good thing, and we will consider the possibility very carefully.

National parks are unique in many respects. In particular, they will be able to take over a number of functions that are currently discharged by local authorities. That is part of the correct justification for including an elected element.

It is probably appropriate for me to address the issues raised in Ben Wallace's amendment now, as that will avoid the need for me to make any final comments before we move on from this group. Amendment 27 would require at least two of the local people appointed to the national park authority to be representatives of community councils. Existing provisions on local members already allow for the possibility of members of community councils to be appointed as members of the national park authority. We fully accept the logic of the argument that community councils should have considerable influence on the membership of national park authorities, as indeed on other matters concerning the national park. The bill contains extensive provisions on consultation with community councils. However, a requirement for two of the local members to be members of community councils is over-rigid and would be difficult to meet in areas where community councils are not strong or well organised. Furthermore, it might lead to certain geographical imbalances. It is not clear how we would identify people who are, as Ben Wallace phrases it, "representative" of community councils. As a result, we cannot support amendment 27.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

We are all glad that the Government has accepted the principle of elected members on the national park authority. We all saw the danger of an us-and-them culture growing as the parks were established, with some perhaps seeing the national park as having been imposed on the people living in the area. Fergus Ewing tried to introduce the idea of a referendum to get round that problem. Certainly the introduction of direct elections will help to minimise the danger of conflict between two groups of people.

More important for the future, we have gone some way towards creating a precedent that will lead to the end of the quango culture in Scotland. If members can be elected to a national park authority, why cannot members be elected to health boards and the other dozens of quangos throughout Scotland? If the national park authority is a success, that idea will be carried forward.

The fact that Mike Rumbles lodged one or two amendments in committee and has now had to lodge a dozen perhaps more complicated amendments serves as an object lesson for all committee members who think that it is fairly simple to lodge an amendment that will achieve a desired effect.

Amendments 55 and 64 remove provisions regarding financial interest disqualification and removal of members. On a technical point, I would like to check that it is the intention that those matters will be catered for by orders under the proposed new paragraph under schedule 1.

Although we all subscribe to democracy and the introduction of a democratic element, we have to accept, if we are honest, that the proposed arrangement is not guaranteed success. I was concerned when the minister compared the elections with the elections to school boards and community councils, which are not uniformly successful in Scotland. We have to do a lot to ensure that the electors in national park areas participate in the elections and that there is adequate publicity to encourage their participation in decision making.

There will be practical difficulties in some of the suggested national park areas because of geography, particularly in the Cairngorm area, where there are many districts on the periphery that have no commonality with each other apart from the fact that they have the mass of the Cairngorms between them. Interesting conundrums will arise for the electoral register. I can imagine the electoral register of a polling district being broken down into two parts, depending on which bits of the district are in the national park area and which are not. However, we wish this provision well and we will all help to make it work in practice.

Des McNulty (Labour, Clydebank and Milngavie)

I wish to pick up a few points. First, I am not clear how the elections can be depoliticised, a point that Mike Rumbles raised. I do not see how there can be a process of election that does not have a political dimension. That may not be a party political dimension, but it could be. Once an electoral process is created, that possibility exists.

A second important issue, which I raised at stage 2, is boundaries. In the context of Loch Lomond, it is easy to see that the elections will be significantly influenced if Balloch is included in the boundaries of the national park. If it is included, it will skew the electoral structure. I would like Mike Rumbles to address how that issue might be handled.

Fergus Ewing (Scottish National Party, Inverness East, Nairn and Lochaber)

Will the member give way?

Des McNulty (Labour, Clydebank and Milngavie)

I am sorry, but I am going to make four points and I would like Mike Rumbles to respond to them.

Ben Wallace's amendment raises a third important issue—the position of community councils. Mike Rumbles raised that matter at the Rural Affairs Committee when he lodged amendments on the 20 per cent representation of community councils on national park authorities. My reading of his current proposals is that they actually make it more difficult for community councils to be represented on those authorities. Given that Mike was facing in both directions, I am interested to know the basis on which he is settling down.

Richard Lochhead (Scottish National Party, North East Scotland)

I appreciate that Des McNulty has some questions on local representation, but he lodged amendments of his own, which he withdrew in time for today's debate, just as he did at the Rural Affairs Committee. Why did he withdraw his own amendments?

Des McNulty (Labour, Clydebank and Milngavie)

I am asking questions about community councils. I am glad that Richard Lochhead did not contribute to that.

I have a final important issue to raise, which concerns quangos. There is a principle of local democratic accountability in local government that cuts across the UK, and it is important that we sustain it. Quangos can be rendered accountable in all kinds of ways—through local government, through this Parliament and through a process of direct election. One form of democratic accountability is not intrinsically superior to another. There is a debate to be had on the most appropriate form of democratic accountability and how it will work. That is particularly important in relation to the way in which planning powers will be exercised and the effectiveness of that. I am posing those issues as questions and I am genuinely interested in how Mike Rumbles will respond.

Murray Tosh (Conservative, South of Scotland)

In the most recent debate—

David (None, Lothians)

Order. There is too much conversation going on on my right.