Antisocial Behaviour (Fixed Penalty Offence) (Prescribed Area) (Scotland) Regulations (SSI 2005/106)<br />Antisocial Behaviour (Amount of Fixed Penalty) (Scotland) Order 2005 <br />(SSI 2005/110)
Antisocial Behaviour (Fixed Penalty Notice) (Additional Information) (Scotland) Order 2005 (SSI 2005/130)
Agenda item 4 is subordinate legislation. There are three negative instruments to be considered, and committee members should have received copies of them with their papers. They all arise from the Antisocial Behaviour etc (Scotland) Act 2004 and they concern fixed-penalty notices. One is on prescribed areas, one is on the amount of a fixed penalty and one covers the additional information that should be included in a fixed-penalty notice. Do members have any questions on the instruments?
Is it our duty simply to approve or not approve the instruments rather than to provide a report on them? I have a question on the instrument about additional information. I know that the Subordinate Legislation Committee submitted a note on it, but the point is academic if our duty is only to approve or not approve the instruments.
The committee's obligation to consider statutory instruments depends on which procedure is involved. Obviously, if the instruments were subject to the affirmative procedure we would have a minister before us and we could ask questions. If instruments are subject to the negative procedure but the committee has a concern, it is entirely competent for the committee to make a decision about what it wishes to do. I am perfectly happy to hear your concern, which might echo a concern that I noted about the adequacy of the information that is included in the fixed-penalty notice. I am not clear whether there is any right of question by the person who is served with the notice to enable them to refer to the court to challenge it.
The reporting deadline for Scottish statutory instrument 2005/130 is 25 April, so there is an opportunity to do that.
My first point relates exactly to the point that the convener made. My second point relates to the information that will be recorded on the individual's gender, race and occupation and how that information will be used. My query is about the information on the fixed penalty and whether it could be regarded as relevant for the purposes of an enhanced disclosure certificate. That would be quite a considerable matter if an individual sought to query the information, because I am not sure whether there would be a time limit. Information on an individual could be registered for a long time, especially if there was no criminal offence. I think that we agree on that, so it would be useful to write to the minister for clarification within the timeframe.
We have time to do that. The decision is obviously for the committee. We would need to explain to the minister that we were operating within the timescale for reporting on the instrument and seek his or her co-operation in responding. It would then be for the committee to decide what to do in the light of the minister's response.
Will the convener clarify what we would ask the minister? If it is suggested that we ask the minister to clarify the point about additional information, I draw members' attention to the annex to our papers, which refers to a revised Executive note that clears up the misapprehension about—or at least the less-than-clear phraseology of—article 2(e) and I think clarifies the matter about which Jeremy Purvis asked. However, I think that the convener wants to make another point, and I am not against asking the minister about that.
I think that you are referring to the annex to the clerk's note, which contains an extract from the Subordinate Legislation Committee's report. The report says:
That was my conclusion, too. Obviously, if there is another point of clarification, we have time to ask the Executive about it.
My point was quite separate from Jeremy Purvis's point. The phrasing of article 2(e) of SSI 2005/130 was unclear to me. The paragraph says that the notice will include:
That is definitely proper and we should find out about that.
The third issue that emerged from Jeremy Purvis's comment was, if I understood him correctly, about the status of information in the fixed-penalty notice.
I am not clear whether I am referring to the outdated Executive note that the clerk circulated. I read the extract from the Subordinate Legislation Committee's report and I took from it that the first Executive note implied that the information provided for in the statutory instrument would include race, gender and occupation. I understood from that that the police would separately record other information, such as gender, race and occupation. Is that separate information requested at the time of serving a fixed-penalty notice? The police would have that information for no good reason if indeed the fixed-penalty notice was incorrectly given. So I seek clarification on how that separate information will be used.
I am not clear about this. At the moment, the committee's remit is simply to look at the four walls of these statutory instruments. The question of what information is in another domain has nothing to do with this. If that is a concern, you are free to write to the Association of Chief Police Officers in Scotland or to a chief constable.
However, if that information is only being requested because of the issuing of a fixed-penalty notice, that is relevant to the support of the fixed-penalty notice.
I disagree. How that information is then used is a separate issue. If you have a problem with that, that is fine and it is entirely legitimate. However, it does not affect the fixed-penalty notice.
That does not affect whether we have a view on the fixed-penalty notice. The instruments are in force and we have to content ourselves with what they say and whether we have any questions about that. The only concern that I have is the one that I have already expressed.
We should write on behalf of the committee to express that concern and see what we get back next week.
Do we agree to do that?
Members indicated agreement.
It is worth doing although I suspect that the answer will be what we think it will be.
Okay, we will write to the minister to seek clarification on that specific point and ask for his co-operation in responding to us as quickly as possible and I hope that we will be able to put it on the agenda, even provisionally, for next week. The answer can be given to us fairly swiftly because it is a purely clerical matter and then the committee can take a further decision next week.
Members indicated agreement.
Is the committee content with the Antisocial Behaviour (Amount of Fixed Penalty) (Scotland) Order 2005 (SSI 2005/110)?
Members indicated agreement.
In that case, as previously discussed in relation to the Antisocial Behaviour (Fixed Penalty Notice) (Additional Information) (Scotland) Order 2005 (SSI 2005/130), I will write to the minister to seek specific clarification on precisely what article 2(e) of that order means about the information that is to be included on the fixed-penalty notice.
Meeting continued in private until 17:19.