Plenary, 07 Feb 2001

Meeting date: Wednesday, February 7, 2001

Official Report 407KB pdf

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Criminal Justice and Police Bill

We now come to a short debate on motion S1M-1618, in the name of Jim Wallace, on the Criminal Justice and Police Bill, which is UK legislation. I invite Iain Gray to speak to and move the motion.

The Criminal Justice and Police Bill, currently being considered by the Westminster Parliament, introduces a range of measures to tackle crime and disorder. Its provisions would apply primarily to England and Wales but some would also apply to Scotland.

Some measures relate to reserved matters, for example, travel restriction orders for drug trafficking offenders and the organisation and personnel of the National Criminal Intelligence Service. There are three measures that are within the legislative competence of this Parliament but which we believe are best dealt with in the bill. Those concern: the disclosure of information for the purposes of criminal investigation and proceedings; the extension of seizure powers of certain bodies, such as Her Majesty's Customs and Excise, to allow material to be removed for sifting; and the execution in Scotland of warrants issued in England and Wales for certain materials. We are asking this Parliament today for its consent that those provisions are included in the bill to be considered at Westminster.

The proposals on information disclosure extend and rationalise the rules governing the disclosure of information that is needed for criminal investigations. They also create new disclosure provisions for the Inland Revenue and HM Customs and Excise, which currently cannot share information, even in criminal investigations. At present, the Inland Revenue may, for example, obtain information about drug trafficking but be unable to disclose it to the police. Some disclosure provisions currently prevent information from being shared before the start of any criminal proceedings and therefore hamper the police investigation.

The bill would amend existing disclosure provisions, which are contained in a large number of existing statutes, some of which relate to devolved matters. The Parliament would have competence to legislate separately on the disclosure of information to detect and prevent crime for matters that are not reserved. However, the bill's aim is to standardise those disclosure provisions. That is best done across the UK to ensure the necessary consistency. The Executive therefore proposes that both reserved and devolved disclosure matters should be dealt with as a whole in the Westminster bill.

The proposals on powers of seizure would allow investigating officers to remove material from premises and individuals for sifting if that is not possible at the time of the search. For example, investigators could remove a large number of documents that they suspected included some for which they had a search warrant, and then go through the documents at their own premises to establish which ones they could seize. Although the Scottish police do not have those powers now, we do not propose that the provisions be extended to them. The current practice of sifting on the owner's premises or removing material with the owner's consent does not cause practical difficulties in Scotland.

However, the provisions in the bill also cover the powers of a number of bodies that operate UK-wide, such as HM Customs and Excise and the Inland Revenue. There are also provisions affecting the powers of local authority officials, such as trading standards officers. The Executive accepts that those bodies and officials should have the same powers to do their job in Scotland as they would in the rest of the UK. There are also certain UK bodies, notably the Financial Services Authority, whose seizure powers are exercised through police constables. To preserve the UK-wide regime for those powers, the Executive proposes that they be exceptions to the general exclusion in the bill of Scottish police officers from the provisions.

The final provision allows the execution in Scotland of warrants issued in England and Wales for excluded and special procedure material—that is, material of a confidential nature, such as personal records, journalistic or commercial material. Those warrants can be obtained only from a circuit judge in England and Wales, and a loophole in the current law means that warrants from those judges cannot be enforced in Scotland. We do not have the same problem enforcing Scottish warrants in England and Wales.

The bill would therefore amend the Police and Criminal Evidence Act 1984 to allow such warrants to be executed in Scotland. Although, once again, it would have been possible for this Parliament to legislate, the Westminster bill is the simplest and most effective way of closing that loophole.

The Criminal Justice and Police Bill includes, of course, other substantive provisions that will not apply to Scotland. This motion simply ensures the closure of a loophole and avoids any risk of creating new ones in areas such as information disclosure. It is no more than commonsense co-operation between Parliaments in our common purpose of the fight against crime.

I move,

That the Parliament notes the provisions on information disclosure for criminal proceedings and powers of seizure contained in Parts II and III of the Criminal Justice and Police Bill currently before the UK Parliament; recognises the practical value of consistency across the United Kingdom for information disclosure for criminal investigation, and for powers of seizure as they relate to certain United Kingdom bodies and local authority officials, and agrees that the relevant provisions to achieve this end in this Bill should be considered by the UK Parliament; further notes that the Bill allows certain warrants issued in England and Wales to be executed in Scotland, recognises the importance of mutual execution of warrants for law enforcement, and agrees that the relevant provision to achieve this end in this Bill should be considered by the UK Parliament.

This is a short debate and members have three minutes each for speeches.

I regret the fact that, for the second week running, the Parliament is being asked to consider a Sewel motion, as a result of legislation going through Westminster that affects areas of devolved responsibility. Last week, we considered a Sewel motion relating to a private member's bill that was going through Westminster, which amended areas of devolved responsibility. Today, we are being asked to pass a Sewel motion that will impact on the Scottish criminal justice system and, in particular, our police.

As the minister will know, the SNP has consistently raised concerns about the use of Sewel motions. Over the past year, there have been several Sewel motions relating to our criminal justice system. My concern today is not so much the Criminal Justice and Police Bill, but the fact that the Parliament has not been given an opportunity to consider the bill's provisions in detail. Clearly, everyone welcomes new measures that allow us to deal with crime and disorder more effectively. However, as a Parliament, we also have a responsibility to scrutinise legislation in a detailed fashion, in order to be satisfied that its provisions are in the best interests of the Scottish criminal justice system.

Will the member give way?

I am sorry, but I have only three minutes.

Part III of the bill has already raised concerns because of its human rights and civil liberties implications, as it will extend police powers to seize materials. As a Parliament, we have a responsibility to ensure that we consider such concerns and, if necessary, to ensure that the bill has sufficient safeguards to protect individual human rights.

Will the member give way?

Time is against us.

The motion fails to give us sufficient time to consider such matters in full. Earlier this afternoon, Des McNulty made a point of order on the three half-hour debates in the name of Tommy Sheridan, which will take place tomorrow, because he was concerned that there would be insufficient time for back benchers to participate in the debate. Des McNulty's concerns about those debates could be applied equally to those on Sewel motions.

As I have said, the issue is not the potential benefits of the Criminal Justice and Police Bill, but the fact that we have not been afforded sufficient time to give its provisions detailed consideration. I hope that the Executive will reflect further on its use of Sewel motions.

To a degree, today's debate is farcical. Although the bill contains many important measures, it is unlikely that the Labour Government will ever implement it, given that Tony Blair seems set on a 3 May election. If that time scale is stuck to, it is most unlikely that the bill will be passed in time. I suggest that Tony Blair might bottle out of that time scale—I would not blame him, given the shambles of the Labour party both at Westminster and Holyrood. I am rather surprised at the Liberals' position. They have been bought out in Scotland, but not in England. There are elements of the bill, particularly the provisions on DNA, at which the Liberals may take offence.

I welcome the fact that the Labour party is at last being seen to try to come to grips with the problems that arise in respect of law and order issues south of the border. In many areas, the bill falls short of meaningful action against criminals. However, for a Labour Government it is a breakthrough.

Some elements of parts II, III and IV of the bill are of significance to Scotland. Part II refers to disclosure of information for the purpose of criminal investigation. I suggest that that will be of tremendous advantage to us in the war against drugs in all parts of the UK. We must remember that criminal activity does not recognise borders.

I am disappointed that the minister has said that the police in Scotland will not be given the same powers to sift material that police in England and Wales will enjoy under part III. There would be some advantage in allowing the police to make use of those sifting arrangements, particularly given the fact that police resources in Scotland are overstretched because of the drop in resources given to them by the Executive.

The execution of English and Welsh warrants in Scotland also seems to be a very welcome move. Reciprocal advantages can be gained in England, Wales and Scotland. Those will prove of great benefit to those who try to uphold the law in those countries—in fact within the UK.

I very much regret that Alex Salmond, with his Westminster interests and involvements, is not here. I would have thought that the motion would be the sort of thing that he would try to persuade his nationalist colleagues to back. I am sure that Alex Salmond will have an input when the bill goes through Westminster and I suggest that the SNP should change its stand on the motion and give the Government a little support.

I wish to add my support and that of my colleagues to the motion.

We have reservations about the number of Sewel motions that are being moved, but a judgment has to be made as to whether practical considerations outweigh the loss of opportunity for the Parliament.

In this particular case, there are some problems with the volume of legislation in the justice field. It is important to act quickly in the area that the bill addresses. As the UK bill had its second reading on 29 January, Westminster would appear to be the swifter route although, as was pointed out, the bill might get caught up in the forthcoming general election.

The three areas of concern—disclosure of information, the extension of seizure powers, and the execution of English warrants in Scotland—are important in tackling crime and, to use the Deputy Minister for Justice's phrase, the

"common purpose of the fight against crime"

must be enhanced with these measures.

It is also important to mention that on-the-spot penalty notices for disorderly behaviour, child curfews and the retention of fingerprints and DNA samples are not being extended to Scotland by the Sewel motion.

In closing, I will say that I did not understand Phil Gallie's point. It flew well above my head.

Three members wish to speak, so if they stick to three minutes they should all get in.

I say to Michael Matheson that I do not think that Sewel motions should be used indiscriminately. I would be the last person in the chamber to suggest that substantive changes to Scotland's distinctive legal system should be made in Westminster rather than at Holyrood, but it is a matter of balance and judgment.

I have no quarrel with Michael Matheson being vigilant and always asking, "Is Sewel being abused?" However, in this case, the answer is no. One only has to consider the issues that are being legislated on in England, but which could be legislated on here. At the same time, one should also consider what is not being included in this approach. For example, information disclosure is included in the bill. It is sensible, when dealing with the many agencies that operate on a UK basis, to have consistency throughout the United Kingdom. Anything else would be ludicrous, so the current approach is sensible and right.

Power of seizure is a more difficult issue. To my mind, clause 67 of the Criminal Justice and Police Bill is a good example of how carefully and discriminately the matter is being dealt with. Where we do not need this legislation in Scotland, it is being excluded. Iain Gray referred to the power of a constable, which is an exception. On the other hand, we have exceptions to the exception, for example where a constable is dealing on behalf of a UK authority, such as the Financial Services Authority. My point is that the bill makes careful discriminations.

HM Customs and Excise, the Inland Revenue, the Department of Trade and Industry and the Office of Fair Trading are just some of the bodies that operate throughout the UK. If we do not deal with them in a consistent and nationwide way, we run the serious risk of lots of legal arguments being raised about whether powers are being exercised lawfully, or whether powers are devolved or reserved. I tell members, as someone who has spent half my life making such legal arguments, that the only people who will benefit are the wrong people. Consistency is important.

It is hard to see how anyone could object to the execution of warrants across borders. I agree with Michael Matheson—theoretically, we could legislate for that, but it is difficult for me to find a realistic objection to such a provision.

Gordon Jackson is in the last minute of his speech, so no interventions are allowed.

I am in my last 20 seconds.

A great deal of the bill—such as on-the-spot penalties, provisions to deal with intimidation and child curfew orders—will not apply to Scotland, because they fall into an entirely different category from the measures that we are considering. They are substantive changes to the law and are not concerned simply with those methods of detection. It is right that the Parliament deals with those issues. I like the bill, because it distinguishes the detection methods. That will prevent advantage from being accorded to criminals through substantive changes to the law.

Time up.

Sometimes, we go our own way, but I think that the proposals are sensible and workable. We should support them.

The point that Michael Matheson made is that we have not had enough time for scrutiny. We are having only a half-hour debate. Everything that the Executive says may be correct, but we do not have time to consider it.

Neither the Justice 1 Committee nor the Justice 2 Committee has considered the relevant clauses. I do not know whether they have been sent to the usual suspects—if I may call them that—such as the Law Society of Scotland and the criminal defence fraternity; it would be useful to hear from them. Everything may be hunky-dory, but we have not had the opportunity to find out. That is the issue.

Does Christine Grahame agree that the SNP sends members to the Westminster Parliament who have responsibilities for such issues? The Law Society of Scotland is involved down there and can take up the points.

I thought that the Conservatives had come round to accepting devolution. The bill deals with devolved issues that involve the Scottish criminal justice system.

Generally, we risk allowing some legislation through on the nod. That may not include the bill in the motion that we are debating, but we have not had the opportunity to scrutinise it adequately. I will raise some questions that the bill brought to mind and to which I do not know the answers.

Clause 45 relates to disclosure of information from one public body to another. How will that be regulated? Will that be done by warrant? I do not know. I cannot find anything about that in the bill or in its explanatory notes, which have been made available by the House of Commons. How does the measure connect with the huge list of affected statutes in schedule 1? I do not know.

Were I to be the subject of a criminal investigation—who knows?—could my building society be required to disclose the balance in my account? I do not know. Could the Inland Revenue declare the state of my assets? I do not know. I would like to know the answers to those questions before agreeing to the motion. What if items and assets were disclosed wrongly or I was wrongly suspected of criminal activity? Would I ever be told about the disclosure? I cannot answer that question. I appreciate the need to be rigorous in pursuing crime and its proceeds, but what about the honest citizen?

Part III of the bill concerns powers of seizure. I will quote from the Financial Times.

Last minute.

I am being quick—I have three minutes.

The Financial Times said that the Law Society in England

"was ‘very concerned' about the increased power the bill would give police to seize material"

and considered that

"there were no safeguards to prevent confidential or third party information being taken."

Clause 53 refers to items that are "subject to legal privilege". Will authorities have to read such items to decide whether they are subject to legal privilege and no longer deserve that security? I do not know.

I would like to make another point about clause 53, but I must move on swiftly. Clause 58 is meant to provide a right of appeal, but instead provides a right of return. If someone's assets are wrongly seized, they can get them back, but they will have no remedy against the state. If such a remedy were available, I would like to know what it is.

If the Justice 1 Committee or the Justice 2 Committee had conducted a short one-hour investigation, all those questions would have been discussed.

Following discussion at a group meeting with the Minister for Justice, I am happy to support the Sewel motion, but I will make two points. First, I have great sympathy with the points that the two Scottish National Party speakers made—to which Euan Robson alluded—on the frequency of Sewel motions, on how some are more important than others and on the need for adequate discussion and possible consideration by committees. The Procedures Committee should, among other things, be asked to take on the issue. The number of Sewel motions is much higher than people might have envisaged.

My second point is that the motion says at the end that it would be nice if the English paid some attention. It

"agrees that the relevant provision to achieve this end in this Bill should be considered by the UK Parliament."

Will the Deputy Minister for Justice, or perhaps the Presiding Officer, say whether we have any powers to enforce that. Is it open to us to say that we will sign up to Westminster's legislating on part of a devolved matter, but that it must include a certain point? If we do not have that power we should, because we are surrendering a right to Westminster and, on devolved matters, Westminster should follow our wishes. That should be explored.

Devolution is, to a great extent, about friendly pressure; that is what we should exert. If we say that it would be nice if Westminster voted for something, that will be thrown in the bucket. If we say that a matter must be voted for, or we will not play ball in the Sewel process, that will be treated differently. We should have a way of ensuring that Westminster delivers what this Parliament wants on devolved matters.

Michael Matheson made the point that the SNP has consistently opposed Sewel motions in this Parliament. That is true. It is manifest in this half-hour debate, which we are having because the SNP consistently opposes Sewel motions.

I said that the SNP has "consistently raised concerns". I did not say "opposed".

My memory is that he said, "consistently opposed", but I am happy to concede the point. My point is that the Sewel motion is the crux of the debate for the SNP. Michael Matheson owned up to the fact that the SNP has, for the moment, no interest in the substance of the legislation to which this Sewel motion refers.

That is not an appropriate remark, given that I did look at the substance. I went through the clauses where I had concerns as quickly as I could. As I said, if either of the justice committees had had an hour, we could have looked at those areas of concern. Perhaps then we would have agreed that everything was fine, but we have not had the chance to consider it.

I think that if Mrs Grahame looks at the Official Report tomorrow she will find that Mr Matheson says that the SNP's concern is not with the content of this legislation but with the use of the Sewel debate. He was open in acknowledging that the SNP's interest is simply in making that single constitutional point yet again. When Mr Matheson wished to illustrate the importance of the scrutiny that has been denied to this Parliament, he picked the extension of the power of seizure for police officers. That will be excluded from the Sewel motion, as was explained later by other speakers in the debate.

Will the deputy minister explain why that has been excluded? Will not that create an extra complication? Should it be excluded?

The reason is simple and answers in part the SNP's criticisms. The police in Scotland have not brought any practical problem with that provision to our notice, so there is no need to make the change here that is required in England. If there is a problem in future we will address it, but there is no reason to do so now.

The bigger point that Mr Matheson missed is that, while we might be denying ourselves the opportunity to scrutinise the bill for good reasons, we are not denying the opportunity for scrutiny on behalf of the Scottish people. Phil Gallie was right—that will be the responsibility of Scottish MPs, including the SNP MPs, in Westminster.

Gordon Jackson made the key point—that we are being selective in the application of the legislation. It will be applied where we believe it will be the most effective way of ensuring a consistent regulatory regime or convention throughout the UK. If we create anomalies for the sake of a constitutional point, as Gordon Jackson said, the only beneficiaries will be the criminal fraternity.

Much criticism has been made of the fact that the debate has been short—only half an hour. That criticism came from SNP members, but the criticism is not relevant because, in the end, for the SNP all debates are one and the constitutional question runs through each debate. Half an hour, three hours or every day—for them, it is the same single debate.