Motion S5M-02203: Michael Matheson, Falkirk West, Scottish National Party, Date Lodged: 31/10/2016
UK Referendum on EU Membership: Impacts on Justice and Security in Scotland
That the Parliament acknowledges the result of the UK referendum on EU membership in Scotland; recognises the continuing importance of EU membership to Scotland; acknowledges the benefits to the justice system of EU-wide cooperation and the extent to which the current Scottish justice system is shaped and informed by EU law, as well as the benefits to Scotland’s mixed legal system, which includes civilian elements; notes that any repeal of the EU justice and law enforcement measures will have an impact on the effectiveness of law enforcement and an increase in costs in law enforcement procedures due to the lack of harmonised systems and standards already established; acknowledges the pivotal role played by EUROPOL in facilitating and supporting the international cooperation necessary to combat cross-border crime and terrorism; resolves to promote Scotland’s willingness to continue to collaborate with European partners, and calls on the UK Government to ensure that Scotland has a role in the decision-making, as well as full involvement in all negotiations between the UK Government and the EU, to protect Scotland’s independent justice system.
John Finnie (Highlands and Islands) (Green):
I think it is very important that we debate the subject. As we heard from Jenny Marra, justice is a top priority for our citizens, and an obligation is placed on any state, however it is configured, to see to the security of its citizens and provide justice for them. Key to that is collaborative working, and that is what the European project was about. It was not about setting aside the unique nature of Scots law; it was the mix that was important.
In my view, the clear motivation for the European Union referendum was disengagement from that sort of approach. That has led to alienation and, in some respects, disrespect for the United Kingdom and, by default, Scotland, and I think that it has put security at risk. It has been gesture politics and we continue to hear gesture politics.
We have been there before — I think that only the cabinet secretary has briefly alluded to this — when it came to the Lisbon treaty, which was agreed in 2009. A final decision on United Kingdom participation in 133 justice and police co-operation measures required to be taken no later than 31 May 2014. A convoluted process was involved in that, but nonetheless there was a five-year window following the Lisbon treaty and there was ample opportunity for the UK Government to engage with the devolved Administrations on whether to exercise the block opt-out. After the Lisbon agreement, the arrangements were that it was possible to come in on an individual basis but, for the measures that were agreed before it, a block opt-out had to be exercised.
The important point there was that, despite letters from the Scottish ministers as far on as in April and August 2012, there was very little action. It was clear that the Scottish Government’s position was that some elements that were part of the pre-2009 agreement were defunct and had limited impact. However — it is a big however — there were other significant measures, which have continually been alluded to, including the investigation of cross-border crimes, measures to bring serious organised criminals to justice and the European arrest warrant, Scotland’s experience of which has been entirely positive.
What is at risk if we do not have that approach? I will miss out the names, but examples were given to those of us who were on the Justice Committee at that time. The Deputy Presiding Officer, Christine Grahame, and my colleague Margaret Mitchell will be familiar with this. We heard about a murder case in which the individual was arrested within a day of the extradition request being issued and was swiftly returned to Scotland. Importantly, the warrant allowed the seizure of clothing and other property before it could be destroyed, which would have affected the evidential value, and it led to a successful prosecution.
Liam McArthur (Orkney Islands) (Lib Dem):
I join John Finnie in supporting the European arrest warrant, but he said that it had been wholly successful. Even as somebody who supports the warrant, I note that some legitimate concerns have been raised about the proportionality test for those extraditions. Further work will need to be done in that area, without detracting from the support that is rightly given to the warrant itself.
The member makes an interesting point but, if it is a numbers game, it has to be seen that it is 5 million people versus the entire population of the remainder of the EU, so it does look disproportionate. The important thing is the speed and efficiency with which action was undertaken.
Another example that we were given involved a violent attack and a murder in 2012. The individual was arrested through the European arrest warrant system within five hours of the issue of the arrest warrant, but also — importantly — by direct contact between the Scottish and Polish authorities under the European judicial network. We need to consider not simply the police operations, which are very important for all the reasons that we have heard, but the value of co-operation at the judicial and prosecutorial level.
There was support from the Scottish ministers, the police, the prosecutors, legal professionals, academics and the House of Lords European Union Select Committee inquiry, which took the view that the benefits of opting out of defunct or ineffective pre-Lisbon measures did not justify the risk of losing those measures that are essential in tackling cross-border crime.
The most telling aspect of what we learned at the time, when the Presiding Officer was convener of the Justice Committee, was that the UK ministers did not consult the Scottish ministers or the Scottish justice agencies on the matter. Although 35 of the measures were ultimately opted back into, I would hate to think that we are about to see that model again. If we did see it, that would be bad news for law enforcement, the judicial network, our civil law and our contractual law, and it would be good news for those who seek to circumvent the law — most commonly criminals. The benefits of the European arrest warrant are well understood.
The issue of taking evidence was raised by my colleague Claire Baker, and there have been developments in that field both in this jurisdiction and elsewhere — another opportunity that could be lost.
The briefing from the Law Society of Scotland, for which I am grateful, talks about stability in the law and says:
“The primary objective of judicial security and police cooperation is the safety of the citizen, as a guiding principle there should be no change to the law which would prejudice the safety and security of the individual.”
We simply do not know. At the moment, lots of guessing is taking place. Going back to the Lisbon agreement, the concern was that, if that had not been concluded in time, we needed reassurance in Scotland about the potential gap in legislation. I think that a big gap is potentially opening up.
The Scottish Green Party will support the Labour Party’s amendment, because we think that it is important that there is analysis. It is also important that we consider the issue of transitional arrangements. For any piece of legislation, we know what has happened in the past and we can perhaps agree what is going to happen in the future; all the complexity is in the transition.
The Scottish Green Party will support the Scottish Government’s efforts to ensure the following for people living in Scotland: that their democratic wishes are respected; that they have access to a quality legal system that co-operates with others; and that their security is assured, which is best achieved by conflict resolution. We believe that all those things are being put at risk by Tory recklessness.