19 January 2016

Justice, divided?

A niche interest, perhaps, but let's talk about Holyrood's Justice Committee. Christine Grahame's committee often pops up on the pages of this blog, sometimes favourably, and sometimes taking a bit of a shellacking.  

Today, Holyrood's sexy Standards, Procedures and Public Appointments Committee reported, making recommendations about how the Scottish Parliament should organise its committee work in future, scrutinising Bills, exploring how new legislation is actually working in practice, and setting their own investigative agenda. But don't be dazzled by the dreary name. This is important stuff. The Committee is lukewarm on the idea of Holyrood directly electing committee convenors, and recommends that in future, committees should be limited to seven MSPs in total. But on the justice brief, the group has this concrete suggestion.

Justice committee 
23. The one exception is the Justice Committee which, in every session of the Parliament to date, has been more consistently burdened with legislation than any other committee. In session 2 there was an experiment with two Justice Committees sharing the same remit. We do not suggest repeating this approach, which only led to confusion. However we note that, in this session, the Justice Sub-Committee on Policing has worked effectively to pick up major issues which the main committee did not have time to cover. 
24. We do not recommend sub-committees as a long term solution. We think that they raise issues of accountability to the main committee which are difficult to manage. We think the Parliament could consider for next session establishing two justice committees but this time with distinct remits – analogous to the split in the House of Commons between Home Affairs and Justice. 
25. We recognise that there are downsides to this option. We point out that the alternatives are also unsatisfactory: they are for the Scottish Government to bring forward less legislation in this area; or for the Parliament to accept that the Justice Committee exists mainly to scrutinise bills and will never have much time to initiate its own inquiries – a clearly undesirable scrutiny gap. 
We recommend that the Parliament should consider establishing two justice committees next session with different remits. If this option is trialled, we recommend that our successor committee reviews it after the first two years of the session. 

Intuitively, this seems like a sound conclusion. Grahame's committee has been rammed with work this session. Ministers are always in favour of criminalising something new, or sticking a new name on an old infraction. NGOs nibble away at MSPs incessantly. And you are never in want of a backbencher or two, with a nut they believe only a sledgehammer can crack. The accelerating pace of criminalisation has proved unremitting. Justice is snowed under - and save for the odd flash of steel - have had next to no time to cast a critical eye backward over the laws Holyrood has passed, or forward, pursuing its own agenda distinct from the Scottish Government's legislative programme. This is not desirable.

But how to distinguish the two committees proposed? Today's report is hazy, and the Westminster parallel prayed in aid isn't particularly helpful here. Keith Vaz's select committee traipses after Theresa May's Home Office, while the Commons Justice Committee chases Michael Gove. There are obvious policy overlaps between these two UK departments' activities, but from a quick look at their current agenda, the home affairs brief focusses almost entirely on reserved matters which remain outwith Holyrood's ken: drugs, immigration, terrorism. 

Between 2001 and 2007, MSPs formed two justice committees, with identical remits, without demarcating any special areas of focus, one from the other. This was daft, providing no opportunity to build up expertise across the policy brief, and no compensating rational divisions of the committees' functions. Reprising this approach in the next session would be a mistake. But if they see the wisdom in today's recommendation, how should MSPs proceed in the next session?

Perhaps the most obvious, wisest and most coherent way of distinguishing between the two committees would be to give one a criminal justice lead, and to proccupy the other with civil themes. Police, prisons, prosecutors and the criminal law on one hand, legal aid, human rights, tenants' rights, and defamation reform on the other. At times this session, a preoccupation with the former has felt like it has crowded out that latter. I grant you, you can't - shouldn't - look at either criminal or civil justice in isolation. Some topics cut across both branches of law, and its professionals and institutions. But a flexible but clear division of functions could only help setting the committees' hopefully more autonomous investigative agenda. Good call.

1 comment :

  1. I totally agree with your suggestion that the natural committee split would be 'criminal justice' and 'civil justice'. It's been a problem for years that civil justice is rarely scrutinised and indeed the Justice Committee has sometimes seemed to be slightly bemused at the proposition that it needs to be. This isn't just a recent issue. When, in 2013, HMG proposed to move the majority of Scottish judicial reviews to a UK tribunal without any reference to Holyrood, and the Scottish Govt Legal Department (which not for the first or last time seemed to see itself as the natural ally of the MoJ) said this was all very right and proper, I wrote to the Committee to say "The Committee is not, I appreciate, normally terribly concerned with matters relative to civil justice which do not engage questions of criminal justice or the police, but it may be concerned as to the implication of the SGLD reply that neither the Committee nor the Parliament have any locus to even consider them." But even then the Committee did not rise to the bait!

    And this is made worse by the absence of interest on the part of the Law Officers in civil justice issues; they have seemed for some years to see themselves as solely concerned with the Crown Office and prosecution.