Contents
- Attendance
- Subordinate Legislation
- Domestic Abuse (Scotland) Bill: Stage 2
- Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill: Stage 1
Subordinate Legislation
First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 (SSI 2017/328)
Good morning and welcome to the 34th meeting in 2017 of the Justice Committee.
Agenda item 1 is consideration of four negative instruments. I refer members to paper 1, which is a note by the clerk. Do members have any comments on the first instrument? I call Liam Kerr. I am sorry—I meant Liam McArthur. I was looking at Liam McArthur, but I said Liam Kerr.
That threw me, convener.
I know that, like other committees, we have had issues with drafting errors that have subsequently required things to be tightened up and dealt with. However, looking at the response from the Delegated Powers and Law Reform Committee in relation to the instrument, I cannot recall having seen a comment from that committee or its predecessors that has gone quite so far. It says:
“it is highly unsatisfactory for the instrument to have been laid before the Parliament in its present form. The Committee’s role is not to provide a substitute for internal checking by the relevant Scottish Government department. The Committee urges the Government to examine its quality control procedures to avoid laying instruments containing so many errors in the future.”
I recognise that those issues have subsequently been addressed, but we should lend our support to the representations made by the DPLR Committee, because the situation is wholly unsatisfactory.
Can we agree to do that? This is not a new issue, and as Liam McArthur has said, it results in the Government having to lay another instrument. The issue must be looked at—I know that we keep saying that—but at least the DPLR Committee seems to be very robust in its scrutiny.
If there are no more comments, does the committee agree that it does not wish to make any recommendation in relation to the instrument?
Members indicated agreement.
First-tier Tribunal for Scotland Housing and Property Chamber (Rules of Procedure) Amendment Regulations 2017 (SSI 2017/369)
If members have no comments on the instrument, does the committee agree that it does not wish to make any recommendation in relation to it?
Members indicated agreement.
First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals (Procedure) Regulations 2017 (SSI 2017/364)
If members have no comments on the instrument, does the committee agree that it does not wish to make any recommendations in relation to it?
Members indicated agreement.
First-tier Tribunal for Scotland Health and Education Chamber (Procedure) Regulations 2017 (SSI 2017/366)
If members have no comments on the instrument, does the committee agree that it does not wish to make any recommendation in relation to it?
Members indicated agreement.
I suspend the meeting briefly to allow the cabinet secretary to come in.
10:03 Meeting suspended.10:04 On resuming—
Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017 [Draft]
Criminal Justice (Scotland) Act 2016 (Modification of Part 1 and Ancillary Provision) Regulations 2017 [Draft]
Agenda item 2 is consideration of two affirmative instruments. I welcome to the meeting Michael Matheson, Cabinet Secretary for Justice, and the following Scottish Government officials: Steven Tidy, police powers team; and Louise Miller, directorate for legal services. I refer members to paper 2, which is a note by the clerk.
Do you wish to make a short opening statement, cabinet secretary?
Thank you. I hope that it will help if I briefly explain the purpose and effect of the instruments.
On the draft Criminal Justice (Scotland) Act 2016 (Modification of Part 1 and Ancillary Provision) Regulations 2017, part 1 of the Criminal Justice (Scotland) Act 2016 represents a significant change to the system of arresting people and holding them in custody. The new arrest and custody processes contained in part 1 provide a clear balance between the proper investigation of offences and the protection of suspects’ rights while in police custody.
Although the majority of arrests are of people suspected of criminal offences, the police have powers of arrest for other reasons not related to a criminal offence—for example, an arrest for breaching a protective court order or an arrest under warrant of a witness for failing to attend court. For those types of arrest, not all the provisions set out in the 2016 act are appropriate. For example, it would not be appropriate to take a witness arrested for failing to appear at court to a police station rather than directly to court. Similarly, the requirement to tell someone the offence for which they have been arrested clearly makes no sense for arrests that do not relate to an offence.
For that reason, as I set out during the passage of the bill, some limited modifications to the arrest provisions are needed for non-offence-based arrests. The modifications made by the regulations will ensure that individuals in those situations are dealt with appropriately—for example, by requiring individuals to be told the reason for their arrest rather than the offence of which they are suspected, and by disapplying the provisions that allow people to be held in investigative custody when the person is not being held on suspicion of committing an offence.
The regulations ensure that people arrested for breaches of protective orders will continue to be brought before the courts under specialist provisions, rather than under section 21 of the 2016 act. They also ensure that, where rights given to everyone in police custody under part 1 of the 2016 act apply, old provisions that partly duplicate those rights in relation to particular types of non-offence arrests will be removed.
For the committee’s information, I point out that a full public consultation was carried out on the regulations and that a draft was included in that consultation. Although the consultation received only a small number of responses, various interest groups including the Law Society of Scotland and Scottish Women’s Aid commented positively.
On the draft Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017, these mainly technical amendments are consequential to the 2016 act. For example, they formally repeal old powers of arrest abolished by section 54 of the act, and they also remove statutory reference to detention under section 14 of the Criminal Procedure (Scotland) Act 1995, which, again, was abolished by the 2016 act.
Paragraph 12(3) of the schedule adds the Sheriff Appeal Court to the list of criminal courts to which the Lord Justice General may make directions enabling an accused to appear by live television link in certain circumstances. All the other criminal courts—the High Court, the sheriff court and justice of the peace courts—are already included on the list. The omission of the Sheriff Appeal Court is purely down to timing, as the bill that became the 2016 act was introduced before the bill that established the Sheriff Appeal Court. This amendment therefore plugs a gap in the provisions relating to live links.
That is a very brief overview of the regulations and their contexts. I am, of course, happy to answer the committee’s questions.
If members have no questions or comments on the instruments, we will move to agenda item 3, which is formal consideration of the motions on the affirmative instruments. I note that the Delegated Powers and Law Reform Committee has considered and reported on the instruments and has made no comment on them.
Motions moved,
That the Justice Committee recommends that the Criminal Justice (Scotland) Act 2016 (Consequential and Supplementary Modifications) Regulations 2017 [draft] be approved.
That the Justice Committee recommends that the Criminal Justice (Scotland) Act 2016 (Modification of Part 1 and Ancillary Provision) Regulations 2017 [draft] be approved.—[Michael Matheson]
Motions agreed to.
Is the committee content to delegate authority to me as convener to clear the final draft report?
Members indicated agreement.
I thank the cabinet secretary and his officials for attending, and I suspend the meeting briefly to allow for a change of officials.
10:11 Meeting suspended.10:12 On resuming—
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