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Chamber and committees

Delegated Powers and Law Reform Committee

Legislative Consent Memorandum: Counter-Terrorism and Border Security Bill

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Introduction

  1. At its meeting on 13 November 2018, the Committee considered the provision in the Counter-Terrorism and Border Security Bill (“the Bill”) that confers power on the Scottish Ministers to make subordinate legislation.i

  1. The Bill was introduced by the UK Government in the House of Commons on 6 June 2018 and had its third reading there on 11 September 2018. The Bill was introduced in the House of Lords on 12 September 2018 and is currently at Committee stage.

  1. The Bill contains one delegated power conferred on the Scottish Ministers. The Bill extends to the whole of the United Kingdom, however, much of it deals with matters which are reserved to the UK Parliament.

  1. This Report refers to the clauses as numbered in the latest version of the Bill.

  1. The Bill contains a range of counter-terrorism measures, many of which update, amend and add to those already set out in existing legislation. Full details of the Bill can be found on the UK Parliament’s website.

Legislative Consent Memorandum

  1. The Scottish Government lodged a Legislative Consent Memorandum on 1 November 2018.i

  1. The lead committee in respect of the LCM is the Justice Committee. The draft motion, which will be lodged by the Cabinet Secretary for Justice is:

    “That the Parliament agrees that the relevant provisions of the Counter-Terrorism and Border Security Bill, introduced in the House of Commons on 6 June 2018, relating to Anti-Terrorism Traffic Regulation Orders, the retention of Biometric material and legal aid, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.”

  1. The LCM was considered by the Committee under Rule 9B.3 of the Parliament's Standing Orders. Paragraph 6 of Rule 9B.3 of the Standing Orders provides that where the Bill that is the subject of a legislative consent memorandum contains provisions conferring on the Scottish Ministers powers to make subordinate legislation, the Delegated Powers and Law Reform Committee shall consider and may report to the lead committee on those provisions.

Delegated powers

  1. There is no delegated powers memorandum by the Scottish Government available for the Committee’s consideration, but this is normal for UK Bills. The Home Office published an updated delegated powers memorandum on 12 September 2018 (“the UK DPM”) for introduction of the Bill to the House of Lords.i

  1. The UK DPM identifies each of the provisions in the Bill that confer powers to make delegated legislation. It explains in each case the purpose of the power, why a delegated power is appropriate, and the parliamentary procedure that has been selected.

  1. This Report considers the power delegated to the Scottish Ministers.

  1. The Committee reports to the Justice Committee as set out below.

Paragraph 19 of Schedule 4 – amendment to section 8A of the Legal Aid (Scotland) Act 1986: Power to prescribe circumstances in which criminal advice and assistance is automatically available.

  • Power conferred on: Scottish Ministers

  • Power exercisable by: Regulations

  • Procedure: Affirmative

Provision

  1. Section 8A of the Legal Aid (Scotland) Act 1986 provides that Scottish Ministers may by regulations provide that advice and assistance in relation to criminal matters is to be available for any “relevant client” without reference to financial limits and criteria detailed elsewhere in the 1986 Act. “Relevant client” is defined as a person to whom section 32 of the Criminal Justice (Scotland) Act 2016 applies (i.e. a person in police custody or attending an interview by a constable voluntarily about an offence which the constable has reasonable grounds to suspect the person of committing).

  1. Paragraph 19 of Schedule 4 to the Bill expands the definition of “relevant client” to include persons detained under Part 1 of Schedule 3 to the Bill or section 41 of, or Schedule 7 to, the Terrorism Act 2000 (the “2000 Act”).

Committee Consideration

  1. The Committee accepts that the explanation in the UK DPM provides justification for this proposed power, in principle. In addition, the Committee accepts that the power is subject to enhanced scrutiny under the affirmative procedure.

Recommendations

  1. The Committee finds the power in Paragraph 19 of Schedule 4 of the Bill to be acceptable in principle.

  1. The Committee is also content that the exercise of the power should be subject to the affirmative procedure.