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Custodial Sentences and Weapons (Scotland) Bill: as amended at Stage 2
I welcome members to the ninth meeting in 2007 of the Subordinate Legislation Committee. We have received apologies from the convener, Sylvia Jackson, who cannot be with us this morning, and from Euan Robson, who is stuck in the Borders.
There may be two further amendments relating to subordinate legislation. We are waiting for the minister to clear an amendment in relation to section 6C, on the judge's report. The amendment would negate the need for the power to make an act of adjournal. We corresponded with and consulted the Lord President on the issue, but there now appears to be no need for that power, because of the amendment that we intend to lodge at stage 3.
There will also be another power to deal with the transfer of prisoners. Once the minister has cleared the amendments, we will write to the committee with more detailed information. We intend to do that at the earliest opportunity—over the next day or two.
We will have the opportunity to discuss those amendments at our meeting next Tuesday.
We are also considering lodging amendments on the weapons side that might include a subordinate power. As Barry McCaffrey said, we will write to the committee with an explanation of the amendments.
We will return to the issue of the judge's report and the act of adjournal.
I hope that I will be able to explain that. It may be helpful if, first, I say a little about the underlying policy. The bill delivers on the minister's commitment to end automatic and unconditional early release. Since receiving the committee's letter, we have looked at the demarcation point and come to the view that 15 days is the absolute bottom end, below which it cannot be reduced. It is considered the shortest possible period within which the necessary arrangements for risk and needs assessment could be put in place and the conditions for the community part of the licence could be set for a prisoner, on release. After considering the matter further, we have decided that we are content that we need the power as it stands, without any threshold, because we need to be able to change our policy in line with different trends. Members will be aware that over the past few years there have been many changes to non-custodial disposals; who knows what may happen in future. At the top end of the range, one could make the case for having a threshold of a year or two years, but we need the flexibility that the power currently gives us.
Was the issue debated with the policy committee?
Yes.
I seek members' views on the issue. Were members present when it was raised at stage 1? Are members concerned that the Executive has decided to retain the flexibility that the power offers, despite the fact that we were looking for it to be limited?
The case that has been stated is a policy case that impacts on subordinate legislation. The points that we have made and the concerns that we have expressed are on the record. The Executive has seen the matter differently, and there is nothing more that we can do.
Are members content with the power and for it to be subject to affirmative procedure?
On section 6, "Setting of custody part", the committee had concerns at stage 1 about the ambiguity of subsection (1), but the Executive has amended the provision. Are members content with the amendment and the section?
Section 6B provides for a power to alter the proportion of sentence forming the custody part. The power is new, but it is substantially the same as the power that was previously included in section 6(10). There are two issues. First, at stage 1 we were concerned that the power was at the limit of what we regard as acceptable for subordinate legislation; we were certainly concerned by the proposal that it be subject to negative procedure. I believe that the Executive has agreed to lodge an amendment to make it subject to affirmative procedure, but has not yet done so. Is that correct?
That is right. We have to lodge all amendments by close on Thursday, so that is in the process of being done.
Secondly, we were concerned about an ambiguity here, which I will précis. The bill provides for a default custody part of the sentence, which would be "one-half of the sentence". However, the bill also sets a maximum period for custody of three quarters of a sentence. If ministers are able to vary the proportion of the sentence that forms the custody part, there is nothing to prevent that from being ramped up to beyond 75 per cent of the sentence. That could easily be addressed by an amendment at stage 3. Is that something that the Executive has looked at and is considering?
From a legal perspective, the conclusion that we reached—which is reflected in our correspondence with the committee at stage 1—was that, in the context of the bill as a whole, taking the custody part beyond the upper limit of 75 per cent of the sentence would not only be unworkable, but would circumvent the clear intention of Parliament in having the bill specify, as it does, that a court may not order a custody part in excess of three quarters of a sentence. We concluded that that context was sufficient to put the brakes on any attempt to exercise that power in a way that would circumvent the intention that Parliament was trying to ventilate through the bill.
There is another interpretation that our legal advisers have raised with us. Although, in theory, section 6(6) limits the custody part of a sentence to 75 per cent, meaning that the provision in section 6B cannot go beyond that, the fact that we could take the opportunity to clarify whether there is any ambiguity about the new power but are not doing so could leave the matter open to interpretation. It could be interpreted that, by not choosing to clarify the matter, we are not restricting the power in section 6B to the 75 per cent maximum period that is stated in section 6(6).
That interpretation could be drawn. However, with respect, I think that the better legal view is that, if the power was exercised in a way that circumvented other key provisions in the bill, of which the provision in section 6(6) is one, that would clearly be contrary to the intention of the power in the first place. Ministers would be hard pushed to justify the exercise of the power in such a way.
That is right. Once a prisoner has served 75 per cent of his sentence, ministers are obliged to release him. Difficulties would be caused if the custody part could exceed 75 per cent. In effect, ministers would have to release the prisoner before any assessment or suchlike had been made.
That is fine. I think that the policy intention is clear; we are just concerned that there is a slight ambiguity.
It is less than clear to me what the problems would be. Assuming that ministers could order more than 75 per cent of a sentence to be served in custody—although there is some debate about that—you say that difficulties would arise. Perhaps, for my sake, you could clarify what those difficulties would be. You say that the policy intention is for the custody part of a sentence not to go beyond 75 per cent of the sentence, but what practical difficulties would arise if the power was used to shift the upper limit?
As Mr McCaffrey said, we feel that, from a legal point of view, things are fine. If there were a loophole that meant that the custody part could be fixed at a period longer than 75 per cent of the sentence, but the bill—in section 14, I think—still stated that the Scottish ministers were under a duty to release a prisoner when he had served 75 per cent of his sentence, that would lead to difficulties.
I am sorry. I apologise if I am in error, but section 6B confers a power to alter the proportion of the sentence that forms the custody part. If the proportion of the sentence that formed the custody part was altered, why would any other section cause difficulties?
Section 6(1A) states that
Does that mean that, even if an assessment of the prisoner's conduct and attitude in custody indicated that he would be a danger to the public for the remaining 25 per cent of his sentence, he could not be required to serve 100 per cent of his sentence in custody in any circumstances?
That is correct.
We are straying into policy matters, but that is worth noting.
It is clear from the discussion that any difficulties with the legislation are policy and political matters, rather than procedural issues about the operation of subordinate legislation.
I am sure that members are fully capable of exercising their views on those policy matters in other committees.
That is correct. There has been further consultation between officials and the judiciary about what would be required and in what format the information would be made available to the Scottish ministers. For that reason, it is likely that an amendment will be lodged that will remove the need for a form prescribed by act of adjournal. As I said earlier, we consulted the Lord President on the matter and it was thought, at that stage, that a power was necessary; however, that view has now been negated.
So you might lodge an amendment on that.
Yes.
Are members content with that? We will have a chance to revisit the matter next week. By then, we will know whether the Executive has lodged an amendment.
Section 43 inserts into the Civic Government (Scotland) Act 1982 new section 27A(7), which gives the Scottish ministers a power to modify the definition of a "dealer" and to specify
New section 27Q of the 1982 act contains a power to provide exceptions to certain offences under that act. The power has not been amended and is subject to the negative procedure. The policy intention is specific and narrowly defined. It is clear that the power was included to allow test purchasing. It will perhaps avoid some of the difficulties that were experienced recently with the test purchasing of alcohol in Fife.
We considered limiting the scope of the power, but, as the committee said previously, there is a desire for flexibility in the operation of the licensing scheme, and that applies to all the delegated powers that are taken in relation to it. We want to ensure that the system is effective and does not exceed the purposes for which we intend it. In practice, the operation of the scheme frequently throws up examples of problematic issues or hard cases. We envisage that the power could be used to address such problems. You certainly have the Deputy Minister for Justice's assurance that the power is not designed to make wide, sweeping exceptions. However, there is a need for flexibility in the operation of the licensing scheme to ensure that it does not interfere in the course of business other than for the intended purposes.
I understand what Gery McLaughlin says, but I would have thought that, in those circumstances, it may be preferable to use the affirmative procedure to allow greater scrutiny of any variations that the Executive might introduce in the light of the hard cases that were mentioned. Have you considered that?
We did not consider that. If I remember correctly, the committee did not raise the matter at stage 1, but I would need to check on that.
With respect, it is almost implicit in asking you to restrict the use of the power that, if you were unable to do so, we might wish to insert the affirmative procedure. As the power is in a new section, we would not have been in a position to raise the matter with you before.
The section is not new at stage 2.
Our position was that we were content with the power but that some definitions should be included. As there are no definitions to limit the power, members might be concerned about the use of the negative procedure. We did not raise the matter, but that was because we addressed the concern in another way.
I understand that. We will reconsider the point and address it in the letter that we send the committee soon. We will confirm the Executive's position on the matter before stage 3.
Thank you.
I note from our briefing that the power is in a new section of the 1982 act. It is not a new power in the bill. I misread that. However, it might be appropriate for the committee to consider an amendment on the matter that we could lodge before the end of the week if the Executive's position is different from ours, or withdraw if the Executive lodges its own amendment. That would get around the manuscript amendment problem if, after our discussions, we still think that it would be appropriate for the affirmative procedure to be used. It would safeguard us.
Do other members have views? The Executive has not considered using the affirmative procedure, but it is not hostile to the idea and the officials have agreed to consider it. Because the matter has not been raised before, I suspect that there will be no difficulty. We should never lodge manuscript amendments if we can avoid it, but I think that lodging an amendment this week might be unnecessary.
I disagree with you, convener. The only way to deal with the matter is for us to lodge an amendment this week. That will avoid the need for a manuscript amendment later. If the Executive lodges an amendment, we can withdraw ours. Given that there might be an issue, we should lodge an amendment and decide next week whether we wish to press or withdraw it.
We could decide to withdraw it on the basis of the further response from the Executive. We are giving it an opportunity to reflect on the issues and to make a case to us that we can accept. I am not being combative in any sense. I am simply trying to suggest that we do the minimum that is necessary, then next week we can decide what to do with the amendment that we have lodged.
Last time we discussed the matter, we decided that the negative procedure was sufficient but that we wanted further definitions. Those definitions have not materialised. Do other members have strong views one way or the other?
No.
In that case, given that Murray Tosh and Stewart Maxwell feel that it would be sensible to lodge an amendment, we will draft an amendment that proposes the use of the affirmative procedure. We will lodge the amendment by Friday. We will note whether the Executive lodges an amendment or whether its response is that it does not agree that the affirmative procedure should be used in this case. The committee will debate the matter again next week.
Our objective is to lodge amendments by Thursday, so you will know by then whether we have lodged an amendment on the matter. You have until Friday to lodge amendments.
Right, so the clerks could leave it until Thursday night. [Laughter.] I am not suggesting that they would do that.
That would be sensible. If the Executive lodges an amendment on Thursday, there will be no need for us to proceed.
Absolutely.
Section 47 is on ancillary provision. This is familiar territory for the committee. Section 47(1) states:
I think that you are more familiar with such provisions than we are. Having considered the terms of the bill and taken advice on normal practice, we accept the point that the affirmative procedure should be used where acts may be modified. We will lodge an amendment on the matter at stage 3.
Are members content with the provision?
That ends our consideration of the Custodial Sentences and Weapons (Scotland) Bill. I thank the officials for coming along at short notice and for their willingness to accept several of the points that were made today.
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Executive Response