Under agenda item 3, we continue with stage 2 proceedings on the Abusive Behaviour and Sexual Harm (Scotland) Bill, which we began last week. Members should have a copy of the bill, the marshalled list and the groupings of amendments for today’s consideration. We will start at section 10, and we will complete stage 2 today.
I welcome to the meeting Michael Matheson, the Cabinet Secretary for Justice, and his officials.
Section 10—Making of order on dealing with person for offence
Amendment 19, in the name of the cabinet secretary, is grouped with amendments 24 to 33 and 49.
The amendments in this group adjust the part of the bill that deals with sexual harm prevention orders and sexual risk orders to acknowledge that relevant criminal offences can result from acts of omission as well as acts of commission.
Amendment 19 does that by inserting in section 10(1)(c) the words “or made the omission” after
“the person has done the act”.
That is necessary to make it clear that the circumstances in which a court can make a sexual harm prevention order on sentencing a person can include circumstances in which a person is found unfit to stand trial but the court determines that the person has omitted to do something and that omission would constitute an offence.
Amendments 24 to 26 adjust section 12 as necessary to provide for acts of omission. Amendment 27 makes a similar change in relation to section 13. Amendments 28 to 33 make the necessary adjustments to section 14, and amendment 49 amends section 33 to acknowledge that sexual risk orders and interim sexual risk orders may be breached by omission.
I move amendment 19.
In my haste, I forgot to say good morning to the cabinet secretary; I should never forget to be polite to him.
It seems that no one else wishes to comment.
Amendment 19 agreed to.
Amendment 20, in the name of the cabinet secretary, is grouped with amendments 22, 38 to 40, 51 and 52.
Amendments 20, 22, 38 to 40, 51 and 52 make minor drafting changes that are necessary to clarify for the reader of the bill the linkages between various sections of the bill and the orders to which they refer, and to improve how the various orders are defined.
Amendments 20 and 22 link the making of sexual harm prevention orders under sections 10 and 11 with the provisions on the content and duration of those orders that are provided in section 15. Similarly, amendment 40 links the making of sexual risk orders under section 26 with the provisions on the content and duration of those orders that are provided in section 27.
Amendments 38, 39, 51 and 52 bring greater precision to the definitions of the orders and interim orders that are provided in sections 24 and 34 respectively.
I move amendment 20.
Amendment 20 agreed to.
Amendment 21, in the name of the cabinet secretary, is grouped with amendments 23, 34 to 36 and 41 to 44.
Amendments 21, 23, 34 to 36 and 41 to 44 will ensure that, before sexual harm prevention orders and sexual risk orders are made, the potential subject and, as appropriate, the police and the prosecutor can make written or oral representations to the court. They will also ensure that the subject and the chief constable can make such representations before such an order is varied, renewed or discharged. That recommendation was made in the committee’s stage 1 report, and the convener indicated in her speech in the stage 1 debate that she would welcome action from the Government in this area to put the matter beyond doubt at stage 2.
We are clear that there should be an entitlement to make such representations, whether orally or in written form, and we believe that the amendments in the group put the matter beyond doubt.
I move amendment 21.
The committee welcomes that in the context of the right to representation under the European convention on human rights.
Amendment 21 agreed to.
Section 10, as amended, agreed to.
Section 11—Making of order against qualifying offender on application to sheriff
Amendments 22 and 23 moved—[Michael Matheson]—and agreed to.
Section 11, as amended, agreed to.
Section 12—Qualifying offender: conviction etc in Scotland
Amendments 24 to 26 moved—[Michael Matheson]—and agreed to.
Section 12, as amended, agreed to.
Section 13—Qualifying offender: conviction etc elsewhere in United Kingdom
Amendment 27 moved—[Michael Matheson]—and agreed to.
Section 13, as amended, agreed to.
Section 14—Qualifying offender: conviction etc outside United Kingdom
Amendments 28 to 33 moved—[Michael Matheson]—and agreed to.
Section 14, as amended, agreed to.
Sections 15 to 18 agreed to.
Section 19—Variation, renewal and discharge
Amendments 34 to 36 moved—[Michael Matheson]—and agreed to.
Section 19, as amended, agreed to.
Section 20—Interim orders
Amendment 37, in the name of the cabinet secretary, is grouped with amendments 45 to 47.
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Amendments 37 and 45 to 47 relate to interim sexual harm prevention and interim sexual risk orders. Amendments 37 and 47 are minor technical drafting amendments that are designed to ensure that the phrase “may be made” is directly linked to the subject of the actions that are set out in sections 20(7)(b) and 30(7)(b) respectively.
The more substantial amendments 45 and 46 provide that, when making an interim sexual risk order, the sheriff must be satisfied not only with regard to the need for making such an order but that there is a prima facie case that the person has done an act of a sexual nature that is being relied on in relation to a connected application for a full sexual risk order under section 20(6)(2). The test for such a prima facie case is already familiar to the courts in relation to interim interdicts and other interim civil orders. Amendments 45 and 46 align interim sexual risk orders with the risk of sexual harm orders that they replace.
I move amendment 37.
Good morning, cabinet secretary. Why is the bill not being amended to provide a prima facie test for interim sexual harm prevention orders?
Sexual harm prevention orders are made after the person in question has been convicted of the offence. That is different from the situation with sexual risk orders, and there is therefore no need for such a qualification.
Amendment 37 agreed to.
Section 20, as amended, agreed to.
Sections 21 to 23 agreed to.
Section 24—Interpretation of Chapter
Amendments 38 and 39 moved—[Michael Matheson]—and agreed to.
Section 24, as amended, agreed to.
Section 25 agreed to.
Section 26—Making of order
Amendments 40 and 41 moved—[Michael Matheson]—and agreed to.
Section 26, as amended, agreed to.
Sections 27 and 28 agreed to.
Section 29—Variation, renewal and discharge
Amendments 42 to 44 moved—[Michael Matheson]—and agreed to.
Section 29, as amended, agreed to.
Section 30—Interim orders
Amendments 45 to 47 moved—[Michael Matheson]—and agreed to.
Section 30, as amended, agreed to.
Section 31 agreed to.
After section 31
Amendment 48, in the name of the cabinet secretary, is in a group on its own.
Amendment 48 provides for a new section in the bill that requires the court to intimate to the subject of a sexual risk order when such an order is made, varied, renewed or discharged. The amendment’s purpose is to provide an equivalent to section 22 in relation to sexual harm prevention orders. Serving a copy of the order assists in the formal record-keeping of the subject’s awareness of the order’s status, which can, among other things, help in any future proceedings relating to a breach of the order.
I move amendment 48.
Amendment 48 agreed to.
Section 32 agreed to.
Section 33—Application of notification requirements on breach of order
Amendment 49 moved—[Michael Matheson]—and agreed to.
Amendment 50, in the name of the cabinet secretary, is in a group on its own.
Amendment 50 deals with what happens to existing offender notification requirements imposed under the Sexual Offences Act 2003 when a person breaches a sexual risk order. Such breaches keep alive any notification requirements that would otherwise expire but, in the bill as introduced, it was not clear how long a notification period would continue in place. Amendment 50 clarifies that it will continue in place until the expiry of the sexual risk order.
I move amendment 50.
Amendment 50 agreed to.
Section 33, as amended, agreed to.
Section 34—Interpretation of Chapter
Amendments 51 and 52 moved—[Michael Matheson]—and agreed to.
Section 34, as amended, agreed to.
Section 35—Breach of orders equivalent to orders in Chapters 3 and 4: offence
Amendment 53, in the name of the cabinet secretary, is grouped with amendments 54 to 60.
Amendments 53 to 60 are mostly of a technical nature and describe more clearly how the various equivalent orders that are made elsewhere in the United Kingdom will be enforced in Scotland if they are breached in Scotland, as set down in section 35.
Amendments 53 to 56 replace references to orders in England and Wales and Northern Ireland with all-encompassing reference to orders
“from elsewhere in the United Kingdom”.
Amendments 57 to 59 clarify that various references in section 35(5) to orders under the Sexual Offences Act 2003 do not relate to such orders made in Scotland.
Amendment 60 adds two types of orders that a small number of people continue to be subject to in England and Wales despite the relevant legislation having been repealed.
I move amendment 53.
Amendment 53 agreed to.
Amendments 54 to 60 moved—[Michael Matheson]—and agreed to.
Section 35, as amended, agreed to.
Sections 36 and 37 agreed to.
Section 38—Saving and transitional provision
Amendment 61, in the name of the cabinet secretary, is grouped with amendments 62 to 66.
Amendments 61 to 65 are largely technical in nature, and generally improve and better explain the saving and transitional provisions in section 38 that are necessary to maintain Scotland’s existing civil order regime until such times as the new orders come on stream.
Amendment 61 removes a definition of “new order” and adds an interim order under the old regime to the definition of “existing order”, so that they continue to have effect during the transition to the new regime.
Amendment 63 provides a new definition of “corresponding new order” that better explains which of the existing civil orders correspond with, and have their equivalent in, the new set of orders. Amendment 62 makes use of that new definition in section 38(3)(b).
Amendment 64 expands the definition of
“relevant sections of this Act”
in section 38(4) to include sections relevant to interim sexual offences prevention orders and interim risk of sexual harm orders in consequence of amendment 61.
Amendment 65 removes a definition that is no longer required as a result of the other amendments to section 38.
Amendment 66 is a consequential amendment that brings the new civil orders that are created by this bill into part 5 of the Police Act 1997. As a result, details of sexual harm prevention orders and sexual risk orders may be disclosed on certain enhanced disclosures so that a person’s suitability to engage with children or protected adults in certain limited contexts can be assessed. For example, prospective adoptive parents would be subject to that sort of enhanced disclosure, as would people applying for a guardianship order in relation to an adult with incapacity. That replicates the provision for enhanced disclosure that already exists in relation to the orders that this bill replaces.
I move amendment 61.
Amendment 61 agreed to.
Amendments 62 to 65 moved—[Michael Matheson]—and agreed to.
Section 38, as amended, agreed to.
Sections 39 to 41 agreed to.
Schedule 2—Minor and consequential modifications
Amendment 66 moved—[Michael Matheson]—and agreed to.
Schedule 2, as amended, agreed to.
Sections 42 to 44 agreed to.
Long title
Amendment 2 moved—[Margaret Mitchell].
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Mitchell, Margaret (Central Scotland) (Con)
Against
Allard, Christian (North East Scotland) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Finnie, John (Highlands and Islands) (Ind)
McInnes, Alison (North East Scotland) (LD)
Murray, Elaine (Dumfriesshire) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
The result of the division is: For 2, Against 6, Abstentions 0.
Amendment 2 disagreed to.
Long title agreed to.
That ends stage 2 consideration of the Abusive Behaviour and Sexual Harm (Scotland) Bill. Thank you very much, cabinet secretary. We went through that at breakneck speed.
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