Justice Committee

Meeting date: Tuesday, February 27, 2018

Official Report 630KB pdf

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Subordinate Legislation

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Courts Reform (Scotland) Act 2014 (Consequential and Supplemental Provisions) Order 2018 [Draft]

Good morning, and welcome to the Justice Committee’s seventh meeting in 2018. We have received no apologies.

Item 1 is consideration of an instrument that is subject to affirmative procedure—the draft Courts Reform (Scotland) Act 2014 (Consequential and Supplemental Provisions) Order 2018. I welcome Annabelle Ewing, the Minister for Community Safety and Legal Affairs, and her officials from the Scottish Government. Paula Stevenson is from the tribunals policy branch, Gery McLaughlin is from the courts and judicial appointments branch, and Samantha Rore is from the directorate for legal services. I refer members to paper 1, which is a note by the clerk.

The minister will make a short opening statement.

Thank you, convener. The draft order will make consequential and supplemental amendments to primary legislation. I understand that the Delegated Powers and Law Reform Committee considered it on 6 February, and that no points were raised.

The order covers two principal areas. First, further to section 130 of the Courts Reform (Scotland) Act 2014, the mechanism for the Scottish tribunal service to join the Scottish Court Service was provided for. That body became the Scottish Courts and Tribunals Service. As a result of that transfer, amendments are necessary to make the payroll function—that is, the payment of remuneration, fees and expenses—the responsibility of the SCTS, rather than of the Scottish ministers. The order will facilitate that by making amendments to various acts to allow the SCTS to make payments to members of the Mental Health Tribunal for Scotland, to justices of the peace and to members of the other Scottish tribunals.

The second area that is covered by the order makes provision for remuneration of temporary sheriffs principal by adding them to the list of judicial officers for whom Scottish ministers may determine the amount of remuneration. That is in order to take account of the possibility that a qualifying former sheriff principal might be appointed on a part-time temporary basis as a sheriff principal and would need to be paid a daily fee.

Although that eventuality has not happened to date, it is considered appropriate to rectify the anomaly that results from no provision having been set forth that would allow payment of a qualifying former sheriff principal. To rectify that anomaly and to include the possibility of making a payment in those circumstances, it is seen as appropriate to include that judicial officer in the list.

Members have no questions or comments, so we move to formal consideration of the motion on the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has made no comments on it.

The motion will be moved, then there will be an opportunity for formal debate, if necessary.

Motion moved,

That the Justice Committee recommends that the Courts Reform (Scotland) Act 2014 (Consequential and Supplemental Provisions) Order 2018 [draft] be approved.—[Annabelle Ewing]

Motion agreed to.

That concludes consideration of the instrument. The committee’s report will note and confirm the outcome of the debate. Are members content to delegate authority to me, as convener, to clear the draft report?

Members indicated agreement.

10:04 Meeting suspended.  

10:04 On resuming—  

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Proceeds of Crime Act 2002 (Searches under Part 5: Constables in Scotland: Code of Practice) Order 2018 [Draft]

Agenda item 3 is consideration of another instrument that is subject to affirmative procedure. I again welcome Annabelle Ewing, the Minister for Community Safety and Legal Affairs, and her officials from the Scottish Government. Alastair Crerar is from the organised crime unit, Alan Nicholson is the Proceeds of Crime Act 2002 policy adviser, and Carla McCloy-Stevens is from the directorate for legal services. I refer members to paper 2, which is a note by the clerk. The minister will make an opening statement.

Thank you, convener.

The draft order is consequential on sections 14 and 15 of the Criminal Finances Act 2017, which expand the civil forfeiture regime under part 5 of the Proceeds of Crime Act 2002. The Scottish Parliament consented to the provisions being made for Scotland on 2 March and 25 April 2017. As the powers extend constables’ search powers under part 5 of the 2002 act, the Scottish ministers are required to make new codes of practice relating to the exercise of those powers in Scotland.

The draft order will therefore bring into operation a combined code of practice for the exercise by constables in Scotland of the search powers that are conferred by sections 289 and 303C of the Proceeds of Crime Act 2002. Section 289 allows constables to search individuals, premises and vehicles for cash amounting to £1,000 or more that has been obtained through unlawful conduct, or that is intended for use in unlawful conduct. The combined code of practice will revise and replace the existing code of practice for cash searches. Section 14 of the 2017 act widens the definition of cash to include, at the request of the Scottish Government, gaming vouchers, fixed-value casino tokens and betting receipts, so the current order will therefore revoke the order that brought that code into operation.

Section 303C of the 2002 act is a new provision that was added by section 15 of the 2017 act. It confers equivalent search powers on constables in respect of certain listed assets that are obtained through unlawful conduct or that are intended for use in unlawful conduct. The listed assets are precious metals, precious stones, watches, artistic works, face-value vouchers and postage stamps. As with cash searches, a minimum-value threshold of £1,000 will apply.

The search powers under sections 289 and 303C of the 2002 act are subject to certain conditions and limits, and their exercise generally requires a sheriff’s prior approval. Because the sections are, in essence, the same, it was considered that it would be simpler and more effective to issue a combined code of practice to ensure that searches for cash and listed assets are carried out appropriately and fairly, and with integrity and respect.

The combined code is, largely, modelled on the “Code of Practice on the exercise by Constables of Powers of Stop and Search of the Person in Scotland”, which came into effect on 11 May 2017. The aspects of the combined code that are specific to the 2002 act also align with equivalent codes that have been issued by the United Kingdom Government under part 5 of that act. That is to ensure greater consistency of practice and, in turn, to secure public confidence in the use of search powers under the 2002 act.

I am happy to answer questions.

I do not know whether you are aware that the committee has received a submission from the Law Society of Scotland raising two points—on accessibility and on monitoring and review. On accessibility, the Law Society basically says that the code needs to be available and accessible in all formats and languages in order to meet the principles of diversity and equality.

The society also says that paragraph 3.7 “clearly” recognises

“that there is a need to respect and ensure the interests of certain specified categories of persons who may be subject to a search.”

It goes on to say that

“What might be better would be to state the principles of interest of justice test rather than appear to be rather restrictive.”

In other words, any category should be illustrative and there should be a wider definition. I am happy to give the minister a copy of the submission, which she could perhaps look at later in order that she can address it.

The submission states:

“There is an overriding interest of justice test that is wider than just those specified”,

but I think that the Law Society is aware that those categories are intended to be illustrative. The Law Society’s second point is a lot easier to understand: it considers that the code should be the subject of a review of how it is working.

If the Law Society had seen fit to do so and had had the courtesy to submit its submission to the Government, we would be in a better position to respond to its questions. I ask Mr Crerar to say a few words.

I think that the Law Society sent the submission in as its response to the Government’s consultation, in which case you would have been in receipt of it, minister.

We proceeded with the consultation and we picked up on certain points that were raised in it. I am sorry: I thought that you were referring to a new submission that you had received this morning and did not realise that it was the society’s submission to the consultation, which we have picked up on. Perhaps Mr Crerar can further advise on the issue.

That certainly sounds very similar to the submission that we received from the Law Society of Scotland. We would be keen to have a look to check whether there are additional points in it, but officials certainly carefully considered the Law Society’s points, including the “interest of justice test” point. We believe that the draft code sets out the key parameters and values that constables should consider, so we did not accept that point.

On accessibility, as the convener has said, the Law Society suggested that the code should be translated into different languages and formats. We were sympathetic to that point, but we were conscious that the code is, above all, for constables.

In working with Police Scotland and other key stakeholders, including equalities groups, we have tried to make the code as clear as possible. We have also made it available online, in police stations and at ports so that people who have been searched can consult the code and share it with advocates or legal advisers and get advice on it.

We consider that we have achieved the right balance. We noted the point, but we considered that the Law Society’s suggestion was perhaps a step too far. We have accepted the society’s point about reviewing the code, and we have been in touch with Police Scotland about that and suggested that a review of use and working of the code further down the line would be valuable.

That would strike the right balance, and you could see whether adjustments are being made. Thank you for that.

Are there any other questions?

I have a question for Alastair Crerar on that point.

Thank you for that clarification, but your response was predicated on the Law Society’s submission to the committee being the one that you have seen.

My substantive question was going to be to ask whether you had seen the Law Society’s submission, because I had noted in the committee briefing paper, that following

“the few representations that were made”

to the Scottish Government, it

“modified the draft where appropriate.”

I was going to ask whether you had modified the draft instrument pursuant to the law society’s representations. The answer seems to be “Possibly”—if the two submissions are the same.

They are the same submissions.

Are they definitely the same?

Yes—the clerks have just confirmed that, so we are all happy.

Thank you.

As there are no further questions and no comments, we move to agenda item 4, which is consideration of the motion on the instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and made no comments on it. The motion will be moved with an opportunity for formal debate, if necessary.

Motion moved,

That the Justice Committee recommends that the Proceeds of Crime Act 2002 (Searches under Part 5: Constables in Scotland: Code of Practice) Order 2018 [draft] be approved.—[Annabelle Ewing]

Motion agreed to.

That concludes consideration of the instrument. The committee’s report will note and confirm the outcome of the debate. Are members content to delegate authority to me, as convener, to clear the final draft of the report?

Members indicated agreement.

I suspend the meeting briefly to allow for a changeover of witnesses.

10:14 Meeting suspended.  

10:16 On resuming—