S4M-08145 Tribunals (Scotland) Bill: Stage 1

The Presiding Officer (Tricia Marwick): The next item of business is a debate on motion S4M-08145, in the name of Roseanna Cunningham, on the Tribunals (Scotland) Bill.

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16:26

Stewart Stevenson (Banffshire and Buchan Coast) (SNP):

Some of us had forgotten that political debates are over not when everything has been said but when everyone has said it, the most recent of whom was Gordon MacDonald. However, I hope to avoid that particular trap.

It is worth going way back to where tribunals came from—the tribuni plebis. Following a battle in 494 BC, the legionaries refused to go out and fight for Rome. To buy them off, the plebs were given the right to elect plebeian tribunes, who were made sacrosanct while they held office. The tribune was the principal and guarantor of the civil liberties of the Roman citizens against arbitrary state power. That is a pretty good basis for what tribunals are.

Willie Coffey talked about the rights of the public. Let us zoom forward a couple of thousand years to the College of Justice Act 1532, which reads:

“And thir persounes to be sworne to minister Justice equaly to all persouns in sic causis as sall happin tocum before thaim with sic vther rewlis and statutis as sall pleise the kingis grace”.

That is how the constitution worked in those days, so a lot of what we are discussing today just ain’t new—we have looked at it many times over hundreds of years.

In the 1600s, there was considerable debate about the divine right of kings versus the power of the people. In an attempt to reassert the divine right of kings, the Crown Appointments Act 1661 declared:

“That it is an inherent Priveledge of the Croun ... to have the sole choise and appointment of the Officers of Estate”—

Parliament—

“and privy Councellors and the nomination of the Lords of the Session”.

Fortunately, we have moved on from that.

Christine Grahame: Will the member take an intervention?

Stewart Stevenson: I want to try to fill my six minutes.

Christine Grahame: It is to challenge your history.

Stewart Stevenson: Briefly, then.

Christine Grahame: I may blunder, but I was not aware that the divine right of kings pertained to the Scottish kings. I thought that it was an English concept and that Scottish kings were appointed by leave of the Scottish people following the declaration of Arbroath. Lewis Macdonald is nodding, so I have an ally.

Stewart Stevenson: I simply remind the member that the Crown Appointments Act 1661 was the sixth act of 1661 by the estates of the Scots Parliament, so things were probably not quite as clear-cut as she suggests. That approach was certainly tried, but whether it succeeded is a debate for another day.

The briefing from the Scottish Parliament information centre draws our attention to concerns about whether tribunals’ lack of independence from Government—whether perceived or otherwise—is in contravention of article 6 of the European convention on human rights. The bill that we are considering today, and which we will continue to consider in times to come, will be an opportunity to provide a pretty rigid statement that our tribunals are independent.

I will turn to the provisions in the bill. I have already made reference, on the back of Rod Campbell’s comments, to the duties that the bill will place on members of the Scottish Parliament to uphold the independence of the members of Scottish tribunals. That is quite an interesting issue, because the bill does not directly prescribe what would happen if a member, or members collectively, of the Scottish Parliament failed to uphold that independence. I suspect that the matter may be covered by the “Code of Conduct for Members of the Scottish Parliament”, paragraph 3.1.3 of which requires that

“Members should uphold the law”.

However, I suspect that there may be some ambiguity there, which the committee and the Parliament may want to look at.

Of course, we have not entirely failed to look at the issue of tribunals before. Willie Coffey referred to David McLetchie, who in March 2004 led a debate on the Fraser inquiry. One issue that that inquiry faced was that it was unable to have access to powers that would have been available to a Westminster inquiry held under the Tribunals of Inquiry (Evidence) Act 1921. Under that act, a tribunal can be given the power to command witnesses to appear before it and to produce the necessary evidence. We have therefore been here before, but we have perhaps overlooked the fact that there are some significant potential effects from our not having all the powers that we might seek.

When, as a minister, I took the Long Leases (Scotland) Act 2012 through Parliament, I had to refer to tribunals in the stage 1 debate because tribunals play an important part in judging the value of land, which is a central issue in such matters.

As the time when I should wind up is approaching, I will say just a little about the Mental Health Tribunal. As a tribunal, the Mental Health Tribunal is special and different in the distinct sense that it is about deciding on the deprivation of liberty of a citizen. That is quite an unusual function for a tribunal, albeit that it is in the interests of the citizen that the decision is taken. I certainly want to ensure that we protect the rights of the citizen.

For me, this is an interesting speech because it is the 500th speech that I have made here—

Christine Grahame: It feels like it, too.

Stewart Stevenson: And 500 is a special round number. However, it may feel like more than 500, if that is what the convener of the committee is saying.

Let me close by quoting from the College of Justice Act 1532, which says that the Scots Parliament intends

“to Institute ane college of cunning and wise men”.

That might be the kind of people that we want involved in our tribunals—

Roseanna Cunningham: Although the majority on the front bench today are women.

Stewart Stevenson: The 1532 act goes on to require

“thir persounes to be sworne to minister Justice equaly to all persouns in sic causis as sall happin tocum before thaim”.

Let us extend that to women, in this modern age, as the minister has urged me to do.


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