Subordinate Legislation Committee, 09 Jan 2007

Meeting date: Tuesday, January 9, 2007

Official Report 151KB pdf

---

Delegated Powers Scrutiny

---

Criminal Proceedings etc (Reform) (Scotland) Bill: as amended at stage 2

I welcome members to the first meeting in 2007 of the Subordinate Legislation Committee. I wish everybody a happy new year. I have received apologies from Janis Hughes, but I do not have any apologies from any other members, so we expect to see those who are not yet here later.

Agenda item 1 is delegated powers scrutiny of the Criminal Proceedings etc (Reform) (Scotland) Bill as amended at stage 2. Some new powers have been added and some existing powers have been substantially altered since we considered the bill at stage 1. The Executive has written to us separately about further amendments that it intends to make to the bill at stage 3. Members have copies of that correspondence.

The first section that concerns us is section 6(2), on the power to determine which police officers have the authority to liberate an accused person on an undertaking. This relates in particular to new section 22(1E) of the Criminal Procedure (Scotland) Act 1995, which section 6(2) of the bill introduces. In its correspondence, the Executive has indicated that it intends, at stage 3, to remove the order-making power that is provided in new section 22(1E) of the 1995 act. That proposed amendment reflects concerns that were expressed by the Justice 1 Committee at stage 2. We did not have any comments on the power at stage 1; do members have any comments on it now?

No.

Section 7A contains a power to make provision in relation to various forms of electronic documentation, storage and communication. Section 7A(2) has been amended to make it clear that the order-making powers that are given to ministers to allow further provision to be made for using and keeping electronic complaints and so on include a power to make further provision allowing requirements as to the formality and validity of documents to be satisfied by electronic means. That amendment reflected, in part, observations that we made in our stage 1 report, which the Executive agreed to look at again at stage 2. Are members content with that amendment and with the power, which is subject to the negative procedure?

Members indicated agreement.

Section 29A contains a new power to prescribe the form of warrant to be granted for the apprehension of an accused person for failure to appear at court. It relates to the form that court documents will take. The Executive considers that that is a matter of the kind that is generally dealt with by act of adjournal. Are you content with the new power, which will not be subject to parliamentary procedure?

Members indicated agreement.

Section 29C contains a power to prescribe the form of written execution that may be used to evidence notice of an order to participate in an identification parade or other identification procedure. The Executive considers it appropriate to exercise the new power through an act of adjournal, which means, once again, that it will not be subject to parliamentary procedure. Are members happy with the power?

Members indicated agreement.

The next matter relates to section 31A and the power to prescribe the form of written execution that may be used to evidence service of bills of suspension, advocation and petitions to the nobile officium—which I hope I have pronounced correctly. This relates in particular to new section 298A(7)(a) of the 1995 act, which section 31A of the bill introduces. The reasons for delegating legislative power here, as well as the choice of form and procedure for the exercise of the power, are similar to those that were advanced in relation to the powers that we have discussed under sections 29A and 29C. Again, there is no parliamentary procedure in this instance. Are members happy with that?

Members indicated agreement.

Subsection (3A) of section 35, "Sheriff summary: other statutory offences", increases the maximum term of imprisonment to which a person on summary conviction is liable to 12 months. It also effects a consequential alteration to all existing penalty provisions, and it is coupled with a power to make appropriate textual amendments to those penalty provisions. Subsection (4) confers an additional power to ministers to make an order effecting similar consequential changes to powers to create relevant offences.

At stage 1, we indicated that we were content with the powers in section 35, but we suggested that it might be helpful if a generic provision along the lines of that contained in subsection (2) was included in relation to powers to create relevant offences. Are you content with the amendment that has been made?

Members indicated agreement.

We turn now to section 36A, particularly subsection (3), which contains the power to

"amend the specification of a maximum fine in a relevant penalty provision".

Section 36A(1) provides that the maximum fine that may be imposed on a person following summary conviction shall in future be the statutory maximum.

Section 36A(2) provides that the statutes and subordinate legislation that create the affected offences are to be read subject to the amended maximum financial penalty.

Section 36A(3) allows ministers, by order, to make textual amendment to the maximum level of fine that is specified in the statutory offences to which subsections (1) and (2) apply.

The amendments that have been made are essentially technical, as members can see from the legal brief. Although the powers could be used to amend primary legislation—I gather that that would not be the case in substance—it is suggested that the negative procedure would provide a sufficient level of scrutiny in this instance. Are members content with the power and the procedure?

Members indicated agreement.

Good. The reasons for the Executive's taking the powers in new section 36A(5) are the same as those for taking the powers in subsection (3), which we have just discussed. Are members content with the power and with the fact that it is subject to the negative procedure?

Yes.

Section 39(1)(f) of the bill as introduced contained a power to make provision for fixed-penalty discounts through new section 302(7A) of the 1995 act. Comments made by the Justice 1 Committee at stage 1 led ministers to reconsider their position on the provisions. We also had some difficulties with the power, and we agreed to monitor the position at stage 2. An amendment was made by the Executive at stage 2, removing paragraphs (f) and (g) of section 39(1) and, as a consequence, the power under proposed new section 302(7A) of the 1995 act. Are we content with that amendment?

Yes.

Good. Section 43 of the bill introduces a power to make detailed provision relating to the seizure of vehicles through new section 226D(10) of the 1995 act. The bill has been amended at stage 2 to ensure that the power that is provided in section 226D(10) of the act covers those matters that are listed in the new paragraph that was introduced into section 226D(11). Are members happy with that amendment, and with the fact that the power is subject to the negative procedure?

The possibility is raised of restricting the description in some way, for example by applying the word "reasonable" to fees and charges. If we have time, it might be useful to probe that point a little further with the Executive, given the concerns that might arise about the extent of the fees and charges that are to be introduced.

Okay. We have time, so there is no problem with doing that. Are we agreed?

Agreed.

The power contained in section 43A(1) of the bill, to make provision in Scotland implementing United Kingdom obligations

"created by or arising under"

the European Union's framework decision on mutual recognition of financial penalties, was inserted by a stage 2 amendment. It makes provision in relation to the implementation of the framework decision of the Council of the European Union of 24 February 2005 on the application of the principle of mutual recognition to financial penalties.

Section 43A(1) entitles ministers to make provision, by means of an order subject to the affirmative procedure, implementing any obligations created by or arising under the EU framework decision. The power is precedented in other areas. It is fairly sweeping, but the bill contains limitations on its use. It is suggested that the affirmative procedure is appropriate—unless members have any concerns.

No, although it is worth pointing out a fact that is raised in the legal brief. This sort of EU decision used to be introduced into our law through primary legislation, but it is now being introduced by subordinate legislation. That is perhaps part of a trend towards greater use of subordinate legislation. It is worth noting that in passing.

Nothing else, Murray?

No.

Okay. Section 51(4) contains a power to repeal provisions of the District Courts (Scotland) Act 1975. As a result of our comments at stage 1, section 51 was amended at stage 2 in order to clarify the purpose of the power. The amendment made it clear that the power is to be used in connection with the disestablishment of district courts. It is subject to the negative procedure.

Members will have seen the Executive's note to us, which says that, on further consideration, it thinks that the provisions require a further change, because of scope for doubt as to whether the section, in its current form, allows ministers to make an order repealing provisions of the 1975 act for the purpose of reform to the system of lay justice. Are members happy with the amendment made at stage 2, and are there any comments in relation to the proposed stage 3 amendment?

Yes and no.

Ditto.

That is very good. I welcome Euan Robson to the meeting. We are at section 51(5) at the moment, Euan.

Thank you.

Section 51(5) contains the power to apply enactments relating to justice of the peace courts to remaining district courts. The section was amended at stage 2 in order to clarify the purpose of the power. The amendment makes it clear that the section is to be used to facilitate the operation of any remaining district courts, and the power is subject to the negative procedure. Are members content with the amendment and the procedure?

Members indicated agreement.

Section 54(7) contains the power to specify the date on which the current appointment of justices of the peace ceases to have effect. The amendment made at stage 2 is similar to the amendment made to section 61(12)—which we will come to in a moment—and reflects a suggestion that we made in relation to that subsection, where we felt that the drafting should be clarified.

Are members content with the amendment and the procedure, which is negative?

Members indicated agreement.

Section 56(1) contains the power to make provision for the training and appraisal of justices of the peace. The section was amended at stage 2 to ensure that any order that is made under the section can apply to people who are undergoing induction training prior to their appointment as a JP. It is essentially a policy amendment and we were content with the use of the delegated power at stage 1.

Do members have any further points to make about the power and the procedure, which is negative?

No.

Section 61(12) contains the power to specify the date on which the current appointment of stipendiary magistrates ceases to have effect. The section was amended at stage 2, and the effect of that amendment is to put it beyond doubt that the day referred to in section 61(12)(b) is the same as the day referred to in section 61(12)(a). That is similar to the amendment to section 54(7), which I mentioned before.

Are members happy with the amendment and with the negative procedure?

Members indicated agreement.