Chamber and committees

Thank you, convener, and good morning, colleagues. I very much welcome the opportunity to discuss the legislative consent memorandum, the supplementary LCM and the second supplementary LCM in relation to those proposals in the UK Government’s Crime and Policing Bill for which the Scottish Parliament has devolved competence.

This large and complex bill covers numerous policy areas and, although we support its overall purpose in so far as it extends to Scotland, we have not needed to accept every measure, for example in cases where we have our own legislation in place or have plans to introduce our own legislation, such as in relation to child retention abroad, subject to consultation. However, where there are benefits to Scotland, the Scottish Government is happy to propose legislative consent to the relevant provisions in the bill.

The bill covers a range of important topics, and I would like to draw your attention to a couple of its provisions. The bill provides for a new, UK-wide offence in order to disrupt adults who criminally exploit children, supporting a four-nations approach to tackling child criminal exploitation. My officials continue to work with the UK Government on the offence as further amendments to the bill are expected.

Related to the child criminal exploitation offence is the new offence of cuckooing, which will seek to criminalise individuals who take control of the home of a vulnerable individual by intimidation or other means and use it to carry out criminality. Members will be aware of the devastating impact that criminal exploitation and cuckooing can have on individuals and their families and it is hoped that the new powers will strengthen our ability to prosecute those who exploit vulnerable people.

I have recently addressed questions raised by the Delegated Powers and Law Reform Committee in relation to several delegated powers in the bill, including questions on the powers to implement international agreements on sharing information for law enforcement purposes and on the power to make consequential provision. I look forward to reading the DPLRC’s report in due course.

We expect more amendments to the bill, which will trigger a further supplementary LCM to be laid shortly. My officials are still liaising with the UK Government on the detail of those new clauses. However, we expect them to include measures covering offensive weapons, child criminal exploitation prevention orders and online child sex abuse. We had initially hoped that the amendments would have been tabled in the House of Lords in sufficient time for us to lodge a third supplementary LCM in advance of this committee meeting, but we now expect the additional amendments to be tabled around mid-October.

The third supplementary LCM will also recommend extending clause 41 in relation to providing for the child criminal exploitation offence. The extension of that clause to Scotland was previously included in the draft bill but was accidentally omitted from the second supplementary LCM.

There is not enough time during my short opening remarks to go into detail on all the clauses that are contained in the LCMs, but I am more than happy to answer any questions that the committee has.

We sometimes get into differences of opinion on things such as online advertising, to give one example. The internet and its regulation is reserved, but if what is being promoted on the internet relates to a service or a particular action, we will, on occasion, argue that that is of relevance to our devolved competencies.

In relation to safeguards and reassurance, the Scottish Government considers that the LCM process is engaged when provisions apply to Scotland for the purpose of legislative competence. In the case that I am referring to, it relates to the steps that are required

“to prevent the advertisement, sale and supply of unlawful weapons in Scotland.”

In this instance, the UK Government considers that the provisions are wholly reserved for the reasons that I have outlined—because they relate to internet services. However, we have a different view. The other area of difference is on barred lists.

It is possible to have differences of opinion whereby both sides are agreed on the principle. That is why I will ultimately come down on the side of what will help to protect communities in the here and now. There are always debates in various forums about where power should lie—those are debates that I do not stand back from—but the fact is that the Scottish Government and the UK Government want to strengthen the action that can be taken against the harms that are caused by the promotion and flogging of dangerous weapons online. I want police in Scotland to have powers to issue notifications to remove content.

There are safeguards for those who are accused of being perpetrators. The committee will be well aware of the work that we did on the Police (Ethics, Conduct and Scrutiny) (Scotland) Bill around barred and advisory lists. The provisions in the UK bill relate to specialist police forces, only two of which are relevant to Scotland: the British Transport Police and the National Crime Agency. We do not want people who have been found wanting in one law enforcement organisation to be able to get a job in another.

There are two aspects to what is proposed. In very broad terms, the provisions broaden the range of persons who can access the DVLA’s licence data. Essentially, we want to ensure that the police in Scotland have the same access to that information as is the case elsewhere in the UK.

We have been corresponding with the UK Government on the matter, because there are some sensitivities. We wanted to be satisfied that the purpose for access was appropriate. What has been negotiated with the UK Government is that the Scottish ministers will be statutory consultees when the regulations are prepared. That means that we will be able to involve and consult the Scottish Biometrics Commissioner, as well as Police Scotland.

I draw the committee’s attention to the comments that the former Minister of State for Policing, Fire and Crime Prevention, Diana Johnson, put on the record. She made it clear that, in the same way that the current powers cannot be used to enable matching with photos, it will not be possible for the powers in the bill to be used to access DVLA information in order to match that up with photos or live facial recognition. I am paraphrasing, but she said that the proposed measures were not a “Trojan horse” for wider use. We have engaged with policing partners and the commissioner, because the commissioner had concerns about that issue in the past.

My understanding is that the provisions are about broadening the range of persons who can access the DVLA’s licence data, so that those records are available for wider policy and law enforcement purposes, and to ensure that police officers can access that information quickly at the point of need when they have an operational need to do so. However, I will ask officials to address your point about offences.

You will get a heads-up when I get a heads-up.

For background, the UK Government legislated for a new offence in the Data (Use and Access) Act 2025. We had asked for provision to be made in the Crime and Policing Bill, but the UK Government was not able to add provision for Scotland. We intend to explain the position of Scotland on the current law on the sharing of deepfakes, which is an offence. We will seek views on expanding the law to cover the creation of deepfakes. The sharing aspect is covered; the issue is around the creation of deepfakes.

Criminal child exploitation and cuckooing have been a frequent topic of consideration at the serious organised crime task force, which I chair, along with the Lord Advocate. I am quite sure that the committee is aware of the work that was commissioned by Action for Children on the matter and that Alexis Jay led that work.

Cuckooing is an issue that involves a mixture of devolved and reserved law—there is reserved legislation on drugs and firearms, and the devolved law includes Scots common law, the Criminal Law (Consolidation) (Scotland) Act 1995 and the Criminal Justice and Licensing (Scotland) Act 2010. There is a bit of complexity in this area regarding the interaction of the laws.

In relation to cuckooing, there was a view from the Crown Office that there is a current legislative gap—although that might be overstating it—in and around the trafficking and exploitation legislation. The Crown Office was consulted at an early stage and it advised that the relevant legislation in Scotland is primarily the Human Trafficking and Exploitation (Scotland) Act 2015, but that it might not apply to all situations envisaged by the offence of cuckooing, such as those where the householder is not really being controlled by criminals or is not considered to have been recruited by them. There was therefore a requirement for a cuckooing offence in Scotland. There is agreement on that from our stakeholders.

The Crown Office had some queries around the drafting in relation to victims providing consent for their home to be used in a particular way, but officials have engaged closely with the Home Office on that, particularly around the formulation of the offence. It considered removing the element of consent altogether; however, officials were advised that the control of a property is not inherently harmful, and that a person could consent to control of their property for criminal purposes without any real harm being caused to them. It is the view that there is no justification to legislate for an offence in that scenario. Officials can perhaps put that into humanspeak for me.

To be fair, yes. It is a frustrating process, because the way in which we legislate and the way in which Westminster legislates are pretty different. There are not necessarily parallel tracks—you will be well versed in that, Mr Hepburn. There have been occasions when we have said that we would want something to be extended to Scotland, but there has not been time at a UK level to do the necessary drafting. Of course, that is disappointing, but it has not happened often. The fact is that the pace and the timelines are not within our gift. Inevitably, there are frustrations and disagreements, but I think that, overall, we are in not too bad a place.

That is an important aspect of the bill. It will introduce powers so that regulations can be made to implement future international agreements as they relate to the sharing of information. That is of particular importance; it is vital for Scotland’s law enforcement agencies to be able to co-operate with counterparts across the UK and in Europe, particularly following Brexit, which disrupted the well-oiled arrangements that existed hitherto. Subsequent legislation has resolved matters only to an extent, leaving co-operation arrangements quite clunky and a bit more time consuming. The bill will enable better and deeper co-operation with our trusted partners, which will enhance the tools that are available to our law enforcement agencies, particularly in relation to tackling serious organised crime. We back legislative consent for the measures. Similar provision was proposed in the previous UK Government’s Data Protection and Digital Information Sharing Bill in 2023, but that bill was not progressed.

We can, of course, write to the committee with further information. We can give a more detailed explanation and follow up on any points, as required.