Sexual Offences (Amendment) Act 2000 (Commencement No 2) (Scotland) Order 2000 (SSI 2000/452)
The order caused us considerable concern and we had a lengthy discussion about it during the legal briefing.
I have read the Executive's response to our concerns about the instrument. It is not impressive. I do not have the ability to say whether it is wrong—time alone will tell if that is the case.
Our legal adviser has provided a summary of the Executive's response, which reads:
"Provisions of the type contained in section 7, including subsection (2), are provisions of Acts which support the substantive provisions of the Act".
We are not given any basis as to why what is in section 7(2) would simply support the substantive provisions. It says "provisions of the type", but we have not had the type of provision that we find in section 7(2). I am not entirely clear what type, group or category section 7(2) is being lumped in with. We have not dealt with a pre-devolution statute in this way before.
The provision does not become the same type of provision as section 7(3) simply because it happens to be next door to section 7(3). Would it be the same type of provision as section 6(3) if it were beside that? Lumping section 7(2) in a section with other provisions does not make it the same type of provision.
We should not accept the Executive's response. The least that we should do is spell out to the Executive the reasons why we still have questions. Our legal adviser has presented the problems to us and I would like the Executive to think about them again. I must stress that I want that to happen not because I am looking for a stick with which to beat the Executive but because we are dealing with a serious criminal matter. If people are charged with serious crimes under the act but the act is thrown out in its entirety because it was never commenced, there will be a serious problem. The issue is more difficult and serious than is indicated by the somewhat glib answer that we got from the Executive.
I agree with Gordon Jackson. The point is serious and a paragraph is not an adequate response. We should go back to the Executive to restate our concerns and make it clear that if those concerns are not satisfied, we will have to highlight the matter to the Parliament.
It would be fair to say that our legal advisers have taken a second opinion from senior sources who remain concerned. The points that have been made by members today are correct. The matter involves serious criminal issues and is sensitive. We should point out that we are not satisfied with the response and that, unless the Executive can be more fulsome and persuasive, we might have to draw Parliament's attention to the matter. We have the opportunity to write to the Executive and consider its response next week; the consensus seems to be that we should flag up our continuing concern and the fact that we are not satisfied by the response. Is that agreed?
Members indicated agreement.