Justice 2 Committee, 01 Feb 2005

Meeting date: Tuesday, February 1, 2005

Official Report 212KB pdf

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Serious Organised Crime and Police Bill

I intimate to members that since our meeting started this afternoon—indeed, while we were dealing with the previous item—the clerks have received from the Executive a supplementary memorandum on the Serious Organised Crime and Police Bill, which we are to consider under agenda item 5.

I am confronted with something of a dilemma. I do not know what is in the supplementary memorandum, and it seems to me that it would be difficult for the committee—which is already faced with an exceedingly challenging timetable, as the minister will understand—to adjust the draft report if the Executive has made other relevant information available. However, I am advised by the clerks that the minister has indicated willingness to make a statement on the supplementary memorandum and to take questions from members.

The minister will understand that my patience is slightly frayed by this approach. It might be the intention of the Executive to subject the committee system of the Parliament to the danger of being regarded as derisive, but I, as convener of the committee, have no intention of being complicit in that objective. I am prepared to use my discretion as convener to table the supplementary memorandum. To enable members an opportunity to consider it, I will grant an adjournment of 10 minutes. I propose that we then reconvene and that we allow the minister to make a statement on the supplementary memorandum. Also, I will permit members to question the minister. Does the committee agree to that course of action?

Members indicated agreement.

We will adjourn until quarter past 3.

Meeting suspended.

On resuming—

I thank the minister for remaining with us during our suspension and welcome to the committee her adviser, Mr Hugh Dignon.

Members have now had an opportunity to read the supplementary memorandum. I suggest that we deal with this extra item on the agenda by allowing you to speak to it briefly, minister. I will then allow members to ask questions. It is important to remind members that, although it is perfectly legitimate to question the minister on the content of the supplementary memorandum and any issues that that might raise in relation to previous discussions, it would not be appropriate to refer to or quote anything from the draft report, which is a private document.

I thank you for being so understanding, convener. I understand that your patience must be wearing thin, but I felt that it would be better to try to approach the issue in this manner and to give the committee its proper place rather than for you to consider a report in private session and for me then to bring further material to you when there was no chance for committee members to consider it properly. I understand the difficulties that that has caused you, but I am grateful for the opportunity to speak this afternoon.

In the Parliament and in the media in recent days, there has been much discussion of the proposals to extend protection for a small number of royal residences in Scotland and the impact of that on the rights of ordinary people to access land. Once again, I state that the Executive views land reform as being one of the cherished achievements of devolution. Supporting and protecting those reforms will remain an integral part of the Executive's programme. However, we are also firmly committed to ensuring that we provide an appropriate level of protection for the royal family when they are resident in Scotland. The level of protection that we provide must be as good as that which is afforded to them in any other part of the UK. That is something that the Scottish public are concerned about and would expect us to ensure. That is why we originally brought forward proposals for extra safeguards to protect the three main royal residences in Scotland.

I am aware that concerns have been raised in the Parliament by back-bench members of both partnership parties and of other political parties about whether those safeguards are needed at this stage. We listened carefully to those views and balanced them against the significant gains that we believe that the proposed legislation brings to the safety and security of our citizens and have therefore today asked the Home Office to amend the Serious Organised Crime and Police Bill to remove the clauses that create an offence of entry to a designated site without lawful authority. I suggest that it might be helpful for me to discuss with the committee at some point how the committee might help us to assess the evidence in favour of such a new offence and consider the need or otherwise for action in Scotland on that issue.

However, I want to reassure the public and other parliamentarians that we will remain vigilant in ensuring that Scotland's police forces use all the existing powers that are available to them to ensure that the royal family can spend time in the residences and be free from threat. As we have stated throughout the controversy surrounding the issue, the UK Government will still be able to designate any of the sites on the grounds of national security. However, with the withdrawal of these clauses, only the Home Secretary will now have the power to designate sites. He has previously given an assurance that he will consult Scottish ministers before doing so, but there will be no statutory role for Scottish ministers or for the Scottish Parliament.

The clauses represent a small part of a very important piece of legislation that is designed to strengthen the safety and security of communities the length and breadth of the UK. Ministers believe that it is important to focus on securing the Parliament's agreement to several of the important measures that are included in the Serious Organised Crime and Police Bill. Those include much needed regulation to crack down on the rogue elements of the private security industry in Scotland and powers to ensure that agents of the proposed serious and organised crime agency are subject to the direction of the Lord Advocate in the investigation and prosecution of crime. I believe that those are the real priorities in the fight against crime. To lose those measures would benefit only one group in Scottish society—the criminals. I do not believe that the Parliament wants that to happen.

I am grateful for the committee's time and I hope that members will accept that we have acted with the best of intentions and that we have ensured that the committee was as up to date as possible with the position before it had to consider its report. I am happy to try to deal with any matters that members might want to raise.

Thank you for that statement. Let me be clear about this: the amendment that is now before Westminster seeks to remove the power of Scottish Executive ministers to designate sites. Is that correct?

It deals with the powers that it might have been argued Scottish ministers would have had. It will allow the Home Secretary to designate sites on the grounds of national security.

If the Home Secretary does so designate a site—albeit that it is intended that he would communicate with your colleagues in the Scottish Executive were he minded to do so—the effect of that designation would be to create an offence that would be committed by anyone who enters that geographical part of Scotland. Is that right?

Even if the other provisions had remained in the bill, the Home Secretary would still have taken a power to do exactly what you have said—to designate an area of Scotland if national security is at stake. The Home Secretary will still have that power.

That will involve a part repeal of the Land Reform (Scotland) Act 2003, which was passed by this Parliament.

That was going to be the case whichever way the committee wanted to look at the issue. The Home Secretary will retain powers to designate sites in Scotland on the grounds of national security. The Home Secretary gave me a commitment that he would consult Scottish ministers. Under the previous proposal, there would have been an opportunity for Parliament to debate and discuss the designation, but the Home Secretary always retained the right to designate sites on grounds of national security.

But the practical effect for Scots law is that exercise of that power by the Home Secretary will require the revocation of the appropriate section of the Land Reform (Scotland) Act 2003.

The previous proposals would have meant that there would have been two different processes. The Home Secretary always intended to take the powers to designate areas on the grounds of national security. In addition, there was a proposal that the royal residences would be designated under an order of the Scottish Parliament and Parliament would be involved in that process. The Home Secretary has given a commitment that he will consult Scottish ministers before he exercises the powers that he will have.

We all agree that, as you put it, ensuring the safety and security of communities is the paramount aim of the bill. You mentioned the regulation of the private security industry and the protection of witnesses and the provisions on those matters are important. For the sake of clarity, does the amendment that removes these clauses mean, in effect, that the powers that were to be ceded to Scottish ministers and the scrutiny that was to be afforded to this Parliament will no longer be available, and that the powers that our partners in the UK Government wish to devolve to us now remain with them? Is that what you are saying the effect is?

I am saying that the effect is that it will no longer fall to Scottish ministers to propose designations on the three royal residences, that it will no longer fall to the Parliament to scrutinise those proposals in detail, and that the provisions whereby the Home Secretary could designate any site in the interests of national security remain. The level of consultation that the Home Secretary decides to undertake is something that he and I will no doubt discuss in due course, but you are correct in saying that the amendment means that a level of scrutiny and an opportunity for the Parliament to exercise its influence will no longer be available in those specific circumstances. However, it would be up to the Parliament—that is why I suggested that the committee could perhaps assist in some way—to consider whether to introduce appropriate legislation in Scotland at some point in future if it was felt that there was a gap in the system.

That is something that the committee and the Parliament might consider. Of course, if the amendment that removes that clause had not appeared before us, we would not have had that additional work to do in future.

You are saying that the devolved functions that were to be given to Scottish ministers and the scrutiny afforded to the Parliament are now not to be given, that they remain reserved and that, whereas it could have been you, minister, with your deputy, members of this committee and the whole Parliament here in Scotland who decided on Scottish matters, it will now be Charles Clarke. Good person though he is, it is now Charles Clarke who will decide such matters. Is that right?

You are putting it very eloquently. The reason why I made the proposals and tried to negotiate with the Home Secretary in the first place was that I believed that the Scottish Parliament would perhaps be interested in having a role in that process. However, I have to be honest and say that, given the reservations that have been expressed by members of various parties over the past week or so, it seemed clear to me that members did not feel that they wanted to use that route in order to be able to exercise those powers.

Perhaps we should have been bolder. Thank you, minister.

Bill Butler put an interesting angle on what is happening here.

It was an accurate angle.

I thought that it was a completely inaccurate angle, but let us just develop that point for a moment. In the previous situation, if the bill had gone through as originally intended, the Home Secretary would have been able to designate sites on the basis of national security, and Scottish ministers could have designated the Queen's land and that of the heir to the throne and Crown land. That was the position. The position now is that the Home Secretary can designate sites on the basis of national security—full stop.

My view when we made the proposals previously was that I felt that the Scottish Parliament would have an interest, as Scottish ministers certainly would, in ensuring that if we were to designate sites in Scotland, we would be aware of the sensitivities around the right to roam and access. I felt that we would want to ensure that, if we talked about the three royal residences—Maureen Macmillan mentioned Balmoral at the previous committee meeting—we would do that in a sensitive way that was consistent with the principle of ensuring people's access unless there was a very good reason otherwise. However, the reality—as Bill Butler has pointed out—is that if Parliament does not wish to have those powers, they will be exercised by the Home Secretary in the interests of national security. He has the right to do that.

With all due respect, that is the point that I am trying to get clear. The Home Secretary will be able to designate sites wherever he wishes on the grounds of national security, but not on the basis that the land is Crown land or on the basis that it is owned by the Queen in her personal capacity. Is it correct that he will be able to use the national security angle, but not those two reasons?

Ultimately, that will come to the same thing. The Home Secretary will have to make a judgment on whether he believes that it is right and proper to designate such an area. Bill Butler was right to point out that, ironically, the effect of the new proposal will be to give the Scottish Parliament less of an opportunity to scrutinise such matters in detail.

According to the answer that you have just given, the Home Secretary could designate a place such as Balmoral for national security reasons. You mentioned that there was disquiet among back-bench members of various political parties about the idea that the law of trespass would be used in relation to the Queen's land and Crown land. That was the proposal that was going to be introduced. We are opposed to that and that is why the amendment to the bill has been tabled.

If the Home Secretary said that he intended to use his power—which you have said that he would do in consultation with the Scottish ministers—to designate Balmoral or other Crown land, would the Scottish ministers oppose that, given that you have had to come here today to discuss the proposed amendment?

I will not make a judgment on what I would say to the Home Secretary when he has not produced a specific proposal. Under my original suggestion, Scottish ministers would have laid before the Parliament the order that would have designated the area in question and the Parliament would have had the opportunity to scrutinise it as part of the parliamentary process.

I must return to the point that Bill Butler was right to identify. Given that there has not been parliamentary support for that position—or rather, it has been indicated that there has not been parliamentary support for that position—such designations will now fall to the Home Secretary. He will have that power. I have no doubt that he will keep his word and consult Scottish ministers, but at this point I will certainly not indicate what my response to such a proposal would be, because a specific proposal has not been made.

Other members want to get in, so I ask Mr Maxwell to make this his final question.

I have two quick points. Although last week the Deputy Minister for Justice gave the committee a robust defence of why what was proposed in the bill was essential, this week you have come to tell us that you want the proposal to be withdrawn. Will you explain why such a robust defence of a power that was said to be essential was given last week but you have now decided that it should be withdrawn? You have said that the Scottish Parliament will no longer have powers of scrutiny over Crown land and land that is owned by the Queen in her personal capacity, but is it not the case that the Sewel motion is the problem? If we had introduced legislation in this Parliament, this Parliament would have scrutinised all such matters and we would not have had to deal with the truncated effort that the Sewel motion represents?

The Sewel motion is not the problem at all. The deputy minister was right to explain in some detail why all the provisions in the Serious Organised Crime and Police Bill are important. I do not think that anyone—certainly no one at this table—would suggest that the royal family should not receive the same protection regardless of which part of the UK they happen to be resident in. That is the point at issue.

I proposed a solution that I felt would give the Scottish Parliament some say in the process. However, having taken account of the concerns that have been raised, I am now proposing that we take a different route. I have made it clear that I am interested in hearing the committee's views and that the committee may wish to consider the matter in further detail. For example, it may want to assess whether a specifically Scottish solution could be introduced at a later date. We must recognise that there was such an option on the table. For various reasons, people had concerns about that. I have listened to those concerns, but it is important to acknowledge that the Home Secretary is responsible for national security. I would expect him to do what he needs to do to ensure that the appropriate protection is given.

I am grateful for the media attention during my first attendance at a Justice 2 Committee meeting. I did not know that my comments on youth justice would be so profound.

Ask your question, Mr Purvis.

I also agree with the minister on the need to protect the royal family and I condemn the erroneous comments about the prospect of all Crown land being designated. I very much welcome the minister's approach.

I want to make two points. First, given the fact that trespass legislation has already been in operation in Scotland for more than 10 years under the Criminal Justice and Public Order Act 1994 and other measures, and given the police powers that already exist, will the minister ensure that proposals to afford the same level of protection on both sides of the border can be scrutinised by this or other committees of the Parliament? Secondly, given the provisions in the Land Reform (Scotland) Act 2003 that allow for the recognition of designated areas and of individual property and the privacy of the owners of that property, what mechanism will the minister set up to ensure that the Parliament can scrutinise whether there is a necessity for any new powers that might be introduced and how those would fit in with existing Scottish statute?

I have no immediate plans to bring any proposals back to the committee.

I felt that it was important that the committee recognised the current position. Given the concerns that have been expressed by committee members and other back benchers, I feel that it is important that, if possible, we now work with the committee to arrive at some solutions. It may be of interest to committee members to consider further, for example, the views of the police and others. As Jeremy Purvis rightly points out, a law of trespass has already been introduced by other legislation.

The bottom line is that we attempted to ensure that the Scottish Parliament had an opportunity to be part of a process, but the level of concern that was raised leads me to believe that we need to look at that afresh. Although I have found the level of concern surprising, those concerns have nonetheless been raised. However, I doubt that we would get the Parliament's approval to put at risk the bill's other serious measures, which I know many people have fought and campaigned for over a long period of time. The committee has an opportunity, if it so wishes, to try to work with ministers to consider a way forward.

I have two questions. First, does the minister accept that the Executive is in complete disarray, given the complete U-turn that it has made within a week? Last week, the Deputy Minister for Justice argued for one position; this week, the Minister for Justice argues for the complete reverse. Given the minister's selective response to the concerns that have been raised, does she accept that what people see is not so much an Executive listening to the concerns of the committee and of other members as one that is attempting to put in place a simple political fix before Thursday's parliamentary debate?

No. It is important to recognise that—

On a point of information for Mr Fox, the debate will take place tomorrow.

I will try to get there in time for it.

It is not a question of trying to fix something in advance of a debate, as Colin Fox put it. We had a serious situation, in which the proposals did not appear to be getting the support of the Parliament. It is incumbent on me as the minister to hear the concerns that have been raised and to try to address those by looking for a way forward. I take the role of committees in the Parliament very seriously indeed.

Does the minister accept that the committee has been unable to express a collective view? We are not even at the stage of considering a draft report because of the time schedules imposed by the Executive.

I absolutely understand that. However, I felt that it would not be in the interests of the committee—indeed, that it would be discourteous to the committee—if I did not use the earliest possible opportunity to allow the committee to take this further information into account in compiling its report. I took the view that, irrespective of whether the committee's patience was wearing thin, the committee would probably on balance prefer such a solution to the alternative, which would have involved the committee being given that further information after it had gone to the trouble of preparing its report. My view was that such a course of action would not have treated the committee or the parliamentary process with the respect that it deserves.

I hope that the minister accepts that she appears to have shown little foresight or awareness of the likely view of the committee and the Parliament on the matters that we are discussing. It appears that she has teased the Parliament with the sight of limited devolution and then withdrawn it.

That is not the case at all.

I accept what you say, but I wonder whether my understanding of the second supplementary memorandum that you have placed in front of the committee and spoken to is correct. In essence, you are arguing that you are withdrawing our citizens' right to access to their land in order to protect the royal family. Is there not a stark contrast? The royal family's protection is being put ahead of the rights of citizens of this country.

You should leave that as a question, Mr Fox.

Is that a fair summation of the position?

That is not the case at all. I have made it clear that a whole range of measures in the Serious Organised Crime and Police Bill will have a huge impact on the lives of our citizens and constituents. It is important to do what we can to ensure that we take those measures forward in the fight against serious and organised crime. That is what our constituents expect us to do.

The public and our constituents also expect us to ensure that the proper provisions are put in place to ensure that the royal family has protection in its residences, irrespective of where the residence is in the UK. A possible solution was put to committee members for consideration. Far from not having the foresight to anticipate problems, I heard and listened to representations from many people in the Parliament—including back benchers from different committees—and it appeared to me that we had to try to find a different way forward. It is important that you should be under no illusion. The Home Secretary has a responsibility for national security and he will exercise that responsibility.

I am astonished that two of my colleagues on the committee have not welcomed the memorandum—after all, we are talking about something that they argued for only seven days ago. Perhaps they now realise the consequences of their actions.

I agree with Bill Butler's analysis. I think that all scrutiny will be removed from the Scottish Parliament and that the Home Secretary can now designate on the basis of national security. I want to pursue that point, as it is important for the committee to understand the process by which the Home Secretary can designate sites, whether that is open to parliamentary scrutiny at Westminster—although that is being denied here—or whether national security overrides transparent processes that we have come to associate with politics in Scotland. It would be unfortunate if that were the case, as genuine concerns were expressed in the committee about the curtilage of buildings being designated and the time limits available for designation. Perhaps I am wrong, but I think that we have lost the ability to influence all those things.

The member identifies a number of issues. At Westminster, orders will be laid under the negative procedure. I intended to pick up on a number of concerns that committee members raised to try to ensure that the Scottish process was suitable for how we operate in the Scottish Parliament. I certainly heard a number of people raising concerns about whether there would be open-ended designations, whether there ought to be affirmative rather than negative resolutions and so on. Jackie Baillie is absolutely right. Given that we do not have the support even for getting to that stage, we have, in essence, ensured that the Home Secretary must make a judgment about where and how he exercises his powers.

I endorse what Jackie Baillie said about curtilage. Perhaps one of the minister's tasks will be to explain to the Home Secretary what curtilage is.

With respect, it would have been easier to do that through laying a resolution in the Scottish Parliament, but I do not have that opportunity.

Indeed. I totally agree.

I note that you said that perhaps there was scope for a stand-alone piece of legislation. In the light of our timetabling difficulties, how realistic is that?

I am not convinced that a stand-alone piece of legislation would be the answer. With the committee's assistance, we would have to tease out what some of the objections were in a bit more detail, so that we could find a piece of legislation or a legislative slot that allowed us to address those concerns in proper time and bring forward something appropriate. There are a number of areas in which people raised concerns. People expressed the concern that they did not have time to deal with the bill appropriately and wanted to discuss the provisions. I have tried to find a way of allowing people to do that, but I do not think that it would be simply a case of introducing a piece of stand-alone legislation.

Thank you for that. Is there any concluding observation that you want to make on the basis of the questions that have been posed to you?

There is nothing that I want to add. The members have asked some pertinent questions. However, I place on record my thanks to you. I realise that this was an unusual situation and that the committee has a busy schedule. I know that you now have to prepare your report, and I hope that you recognise that I offered to make these comments today to enable the committee to be fully apprised of some of the discussions that I have been having with colleagues here and at Westminster. It was important for me to treat the committee with the appropriate respect.

I receive your remarks in the spirit in which they are made. My angst may not be completely assuaged; nonetheless, I think that this supplementary session has been instructive. Thank you.

Meeting continued in private until 16:50.