Subordinate Legislation
Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2007 (draft)
I welcome our visitors. Kenny MacAskill MSP is the Cabinet Secretary for Justice; and from the Scottish Government we have Anna Rogerson, who is from the police division; Andrew Henderson, who works on police operations, violence reduction and anti-sectarian policy; and Fiona McClean, who is from legal and parliamentary services.
I refer members to the clerk's note—paper J/S3/07/4/1—which was issued with the committee papers last week. I invite the cabinet secretary to speak to the draft order and to move motion S3M-280.
The order is being made under sections 30(3) and 63 of the Scotland Act 1998. Section 63 allows for the transfer to the Scottish ministers of any statutory or non-statutory functions of a United Kingdom minister
"so far as they are exercisable … in or as regards Scotland".
The Scottish ministers can exercise such functions instead of or concurrently with the UK minister. In this instance, the Scottish ministers will exercise the functions instead of the UK minister.
To support the transfer of functions, it is necessary to specify which functions are exercisable in or as regards Scotland. Section 30(3) of the 1998 act provides for that procedure. The order will make a technical amendment to functions that the Scottish ministers can exercise in relation to international mutual assistance in interception matters under section 5 of the Regulation of Investigatory Powers Act 2000—otherwise known as RIPA. Those functions were transferred to the Scottish ministers in 2003 by a similar order to the draft order that is before us.
The 2003 order provided for the Scottish ministers to issue interception warrants to enable Scottish forces or HM Revenue and Customs to make requests for assistance with the interception of telecommunications elsewhere in Europe, in furtherance of an investigation that is being conducted in Scotland. However, since 2003, the Scottish Crime and Drug Enforcement Agency and the Serious Organised Crime Agency have become operational. Currently, if the SCDEA or SOCA wishes to seek assistance in interception matters from counterparts in European Union member states, the application to the Scottish ministers must be made on the organisation's behalf by another organisation. For example, if the SCDEA was investigating a drug-dealing network based in Glasgow and wished to intercept the communications of one of the network's major suppliers in the Netherlands, Strathclyde Police would make the application, even though the SCDEA would most probably have collected and analysed the majority of the intelligence that supported the application. That is clearly an unnecessary duplication of effort and resources.
The order will enable the SCDEA and SOCA to apply directly to the Scottish ministers to authorise interception warrants, in accordance with international mutual legal assistance agreements, when the warrants relate to the prevention or detection of serious crime in, or with regard to, Scotland. Committee members should be in no doubt that the Scottish Government does not take its role in relation to interception lightly. Interception warrants are issued only when their use is absolutely justified and only in cases that fall squarely within the definition of serious crime. That has been acknowledged by the interception of communications commissioner, who provides independent statutory oversight of the activity.
By enabling applications from the two agencies to be made directly to the Scottish ministers without an extra layer of bureaucracy, we are making a practical and technical amendment to the powers that the Scottish ministers can already exercise for the police and HM Revenue and Customs. I commend the order to the committee.
I move,
That the Justice Committee recommends that the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2007 be approved.
Motion agreed to.
Licensing (Mandatory Conditions) (Scotland) Regulations 2007 (draft)
The cabinet secretary's team has changed for the draft regulations—I welcome Gary Cox from the Scottish Government's alcohol licensing and civic government team. I refer members to the clerk's note—paper J/S3/07/4/2. I invite the cabinet secretary to speak to the regulations and to move motion S3M-279.
The regulations will place two mandatory conditions on licensed premises. The first will require all on-sales premises to place a notice that is no smaller than A4 size, in a place that is reasonably visible to customers as they enter the premises, stating that persons who are under 18 are not permitted on the premises, or that such persons are permitted on the premises or in such parts of the premises as set out in the sign. The Licensing (Scotland) Act 2005 sets out signage requirements for points where alcohol is sold—for example, behind the bar—but it makes no requirements for signage at entrances to ensure that customers are aware of the premises' policy on children before they enter.
The second condition will require baby changing facilities to be provided in any on-sales premises to which children under the age of five are admitted. The condition is intended to ensure that premises that wish to be family friendly by allowing children into the premises or certain parts of them have adequate facilities in place to provide for that.
The conditions are sensible and practical measures that the previous Government proposed, and I am happy to endorse and implement them. I will be happy to deal with any questions from members.
I move,
That the Justice Committee recommends that the draft Licensing (Mandatory Conditions) (Scotland) Regulations 2007 be approved.
The size of the piece of paper is specified, but the font size is not. In theory, the font could be 8 point, so anybody who was more than 2ft away would not be able to see it. Clearly, that is not the intention, but why do the regulations not specify the font size?
I assume that we are taking the industry on trust. If we discover that people are being disingenuous and putting up notices in a font size that requires customers to have a telescope to investigate, we will address that.
The regulations were discussed with the trade by Tom McCabe when he was in charge and, indeed, they were debated as part of the Nicholson review. We should accept them in the right spirit. If recalcitrants deliberately cock a snook at the regulations we will address that, but my experience is that the trade will welcome them because it signed up to them at the time. It is an opportunity to make the situation clear before someone goes into an establishment so that stewards or other staff do not have to eject someone or refuse admittance.
People might be prepared to display the rules in such microscopic print that the A4 size or larger poster would be undermined, but we should accept the spirit of the legislation and the spirit in which the trade has entered into it. I do not envisage any problems, but I assure Nigel Don and his colleagues that if people seek to abuse the law, further regulation can and will be considered.
New paragraph 11(2)(b) of schedule 3 to the Licensing (Scotland) Act 2005 says that
"such persons are permitted on the premises or on such parts of the premises as are specified on the sign."
Does that mean that children are allowed on the premises on the basis that they are accompanied by an adult?
That applies when there are areas of a pub where children can be with their parents. Pubs are getting bigger and they can be subdivided, so the intention is to allow some flexibility for those pubs that are making a particular effort. However, to avoid difficulties, it must be made clear that certain parts of the establishment are not suitable for children.
As an Edinburgh constituency representative, I remember anecdotal evidence that a major bar—frequented by many members of this institution when the Parliament was located on the Mound—used to turn away more tourists than it allowed to come in because it was not able to let in children. The situation was not clear and it was inconvenient for the staff to have to tell tourists that they could not come in for a coffee and a juice.
Would the adult have to identify themselves as the person who was accompanying the child? I ask because concerns have been raised in my constituency about under-18s frequenting certain licensed premises on the basis that they are accompanied by an adult, whereas that adult sometimes cannot be identified.
Paul Martin is correct to raise that point. Obviously we expect the adult to be with the child. A child or under-18 will not be able to go into premises just because an adult had gone in in front of them. We will not allow the child to be lifted over the turnstile, as might happen at a stadium, nor will we allow the establishment to take in any waif or stray. If an adult takes a minor into a pub, we expect that that minor will be with the adult, whether they are biologically related or the adult is simply looking after a friend's child. I understand where Paul Martin is coming from and we are seeking to address that.
The cabinet secretary referred to under-18s, but the regulations also mention under-fives. Does separate signage need to be put in place to say that children under the age of 18 but over the age of five are allowed into the premises, so that there is a clear distinction between those premises that do and those that do not have the baby changing facilities that are required under the proposed regulations?
The baby changing facilities regulation will be used much less because far fewer establishments are in that category. We want it to be clear when those facilities are available. If an establishment does not have those facilities, it should not get the licence, and we want that to be specified at the outset, especially in the type of pubs that Mr Martin was commenting on earlier. Only a limited number of establishments are seeking to be family friendly and to meet the requisite conditions. In other establishments, we are trying to ensure that it is drawn to people's attention before they even enter the premises—not simply at the bar when they try to buy a drink—who can get in.
There are two distinct intentions. In pubs that are looking to be family friendly we must ensure that there are baby changing facilities. In all pubs, we must ensure that the rules about who can be served and who is allowed in are displayed.
Do members have any other questions?
No.
Do you wish to make any concluding remarks, Mr MacAskill?
No, thank you.
Motion agreed to.
That the Justice Committee recommends that the draft Licensing (Mandatory Conditions) (Scotland) Regulations 2007 be approved.
Meeting suspended.
On resuming—