Plenary, 20 Mar 2003

Meeting date: Thursday, March 20, 2003

Official Report 592KB pdf

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Sexual Offences Bill

We now have two brief items of business. The first is consideration of motion S1M-4022, in the name of Jim Wallace, on the Sexual Offences Bill, which is United Kingdom legislation. I call the Deputy Minister for Health and Community Care, Hugh Henry, to move the motion. I will be grateful, minister, if you will restrict your speech to five minutes.

Following the Justice 2 Committee's consideration of the Sewel memorandum on 18 March, I wrote to the convener on the same day to explain in more detail the reasons behind our proposals to amend the schedule in the Sexual Offences Bill that lists offences that can trigger sex offender registration. In that letter, I sought to clear up any misunderstanding and I am happy to be able to do so again.

The Sexual Offences Bill was first introduced at the House of Lords, but it will need to pass to the House of Commons for its consideration. For the avoidance of doubt, the list of offences for Scotland in schedule 2 of the bill as introduced in the House of Lords is simply a re-statement of the list that currently appears in paragraph 2 of schedule 1 to the Sex Offenders Act 1997. Those offences are a mixture of common law sexual offences, such as rape, and statutory sexual offences, such as incest. All the offences that are listed trigger registration automatically. The key word is "automatically". We believe that the approach of having specified sexual offences for which conviction in itself triggers registration is right. That view was endorsed by the expert panel on sex offending, which Lady Cosgrove chaired.

We will seek to instruct a Government amendment to close a gap in the bill that the expert panel identified. At present, an offender might be convicted of a non-sexual offence, such as breach of the peace, but there might be evidence of a significant sexual element in the offender's behaviour. There is currently no way to ensure that he or she is subject to the requirements of the sex offender register.

The minister might recall that, when previously we debated amending the 1997 act and the supervision of sex offenders, we discussed Steven Beech, who is a sex offender who lives under supervision in Aberdeen after Cambridgeshire constabulary gave him a one-way ticket there. I understand that talks on that continue between the Scottish Executive and the Home Office. Will the minister assure Parliament and the people of north-east Scotland that those talks are a priority and that it is hoped that a positive outcome will be achieved not only on Steven Beech's location, but on costs? It costs the Scottish taxpayer £200,000 a year to supervise that individual.

As Richard Lochhead knows, the process could work in the other direction. We are in contact with authorities in Grampian about that case and we continue to be in contact with our colleagues in the Home Office on it and other issues. It would be inappropriate for me to go into any detail other than to say that we will keep the matter under review.

We propose to close the gap that I described by introducing amendments to extend the list in schedule 2 to the bill to include any offence. However, the difference is that registration will not be automatic, unlike with listed sexual offences. Instead, the judge will examine the circumstances of the offence and decide whether the offender ought to be subject to registration because there has been a significant sexual element in the offence. We want to ensure that if the sentencing judge considers that an offender's behaviour displayed a sexual element that is significant enough to warrant additional measures to protect the public, the legislation is in place to enable the offender's being subject to registration.

We consider balance to be essential, which is why we want to retain and re-enact the existing list of sexual offences that—because of their nature—trigger automatic registration. As I explained to the Justice 2 Committee, a good example of that approach is the new human trafficking offence in the Criminal Justice (Scotland) Bill. It would be inappropriate for that offence to trigger automatic registration in every case, but our amendment will enable the judge to examine the circumstances of the offence and to order registration as appropriate.

The committee was also concerned that we might miss out important offences by retaining a list. I assure members that we will not be complacent about the need to keep an up-to-date list of offences that trigger automatic registration, as opposed to those that the judge should consider case by case in accordance with the Cosgrove recommendations. The bill contains a clause that will by order confer a power on Scottish ministers to add to the list of offences in schedule 2 at any time.

In recent years, we and our Westminster colleagues have acted swiftly to introduce safeguards and to strengthen the sex offenders register. The measures in the bill represent a further significant step in addressing the risk that sex offenders pose to our communities. I urge members to support the motion.

I move,

That the Parliament endorses the principle of protecting society from persons who pose a risk of causing sexual harm and agrees that the provisions within the Sexual Offences Bill that relate to devolved matters and which re-enact the Sex Offenders Act 1997, extend the categories of offenders required to register, increase restrictions on sex offenders and strengthen the notification requirements and operation of the Sex Offenders' Register should be considered by the UK Parliament.

I welcome the bill; especially part 2, which will apply to Scotland. That part contains provisions to reduce the time scale for several notification requirements for sex offenders. In some cases, the time scale will be reduced significantly from 14 days to three days. The proposals will promote public safety. I also welcome the intention to amend schedule 2 to allow judges to decide whether an offence has a significant sexual element and whether the offender should be subject to the notification requirements.

I note from the Justice 2 Committee's deliberations on the bill that it expressed concerns; for example, it questioned whether the provisions were required and whether common law could deal with the matter. However, having read the minister's response to the committee's concerns, I believe that amendment of schedule 2 is appropriate, which is why the SNP will support the Sewel motion.

However, I am concerned about the Sewel motion's handling and the use of the Sewel convention. The bill entered the House of Lords on 28 January and received its second reading there on 13 February. When the Justice 2 Committee considered the Sewel motion, it expressed concerns that the motion was being brought before the Scottish Parliament after the second reading had taken place. I remind members of Lord Sewel's comments in the House of Lords in July 1998. He stated:

"we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament."—[Official Report, House of Lords, 21 July 1998; Vol 592, c 791.]

The minister is well aware of the Scottish National Party's concerns about the idea of the Sewel convention. However, if we are to have a convention, motions should at the very least be placed before the Scottish Parliament before the House of Lords or the House of Commons has started to proceed on a bill. Unless we address that issue, some of the concerns that the Justice 2 Committee has highlighted will not be addressed. I hope that the Deputy Minister for Justice will assure us that any Sewel motions that are lodged in future will be lodged at an early stage in the parliamentary proceedings of the House of Commons or the House of Lords.

Sewel motions are always calculated to cause some excitement in the SNP. However, on this motion, the SNP's comments have a degree of resonance, because there can be no doubt that the matter has been expedited to the point at which some confusion would inevitably arise. There have been some hard lessons to be learned in the Parliament over the past three or four weeks. Far too much has been crammed into the final meetings of the Parliament and this motion is yet another example. That will clearly have to be looked at in the days ahead.

There is no serious disagreement on the policy intentions of the bill, which are worth while. The only caveat I offer is that I am still not entirely certain that the matter would not have been better dealt with by stating that statutory and common-law offences in which there is a significant sexual content should be included, rather than listing the offences involved. That would have dealt with serious breach of the peace.

Hugh Henry indicated disagreement.

The minister shakes his head. I know that it is a matter of opinion, but I think that it is an omission that could, with foresight, have been filled.

We have no difficulty with the policy content. The Conservatives will support the motion.

I call Pauline McNeill. In view of her point of order yesterday, I hesitate to restrict her time, but I ask her to manage just two minutes.

I will do my best.

Many members would agree that the system is not yet perfect, but every Sewel motion must be considered on its own merits. I agree with the Scottish ministers that it is important that the subject that is before us be dealt with in a United Kingdom framework.

I welcome the fact that committees will at least have a chance to consider Sewel motions. However, as members can read in the Justice 2 Committee's report, we are a bit concerned about the timetable. There were one or two concerns expressed that will, I hope, be allowed to be put before the House of Commons when it considers the bill.

The committee wanted a wee bit more time to reflect on issues that Bill Aitken and Michael Matheson have mentioned. One of the matters about which we felt there should be consideration is whether the bill should contain simply a list of offences and common-law crimes. Suffice it to say that we are asking for Scotland's common-law system to be protected and that common-law offences be not merely listed in the same way that English offences would be. That is an important point.

We asked the minister whether human trafficking might in future be considered by a judge to be a crime that has a significant sexual element. The minister is right to say that the circumstances would have to be examined so, to that extent, it is right to give judges discretion in such cases. However, perhaps we will have to return to that crime and review the matter on its own merits. Some of the ringleaders in human trafficking should be caught by sex offenders legislation and should be on the sex offenders list. Perhaps Parliament could consider that in future. Under the bill, we will be giving judicial discretion: if a judge thinks that a crime has a significant sexual element to it, the offender could be placed on the sex offenders register. For the moment, that is right.

I hope that it is possible for some of the points that the Justice 2 Committee made in its report to be passed on in the process so that those matters can be considered in future.

I support the Sewel motion.

Bill Aitken might misunderstand the situation. The issue of a breach of the peace of a serious sexual nature will be dealt with by the bill; it will be a matter for judges.

The points that Michael Matheson raised are part of a broader debate, which has been addressed. The Executive sent a note to the Procedures Committee to point out a useful way of moving forward. We received a reply dated 18 March from Murray Tosh, the convener of the Procedures Committee, which said that the committee would have no objections to the proposals in paragraph 5 of the Executive's memorandum being implemented at once. What has been suggested reflects many of the concerns that have been expressed in Parliament over time.

Although I note Michael Matheson's opposition in principle to Sewel motions, I think that we have acted reasonably in this case.