Justice 1 Committee, 14 Jan 2003

Meeting date: Tuesday, January 14, 2003

Official Report 314KB pdf

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Subordinate Legislation

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Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2003

We move to the next item on the agenda and I refer members to committee papers J1/03/1/05 and J1/03/1/15. I welcome the Minister for Justice, Mr Wallace. Minister, I ask you to speak to and to move motion S1M-3739.

Before I go into the details of the order, I shall explain briefly its purpose. The Scotland Act 1998 recognised that, in some cases, it would be appropriate for Scottish ministers to be able to exercise executive powers in areas where primary legislation continued to be a matter for Westminster. Section 63 of the Scotland Act 1998 allows functions in reserved areas to be transferred to the Scottish ministers, in so far as they are exercisable in or regarding Scotland, instead of or concurrently with the minister of the Crown. The order authorises the transfer of functions under certain provisions of the Taxes Management Act 1970, the Rehabilitation of Offenders Act 1974 and the Transport Act 2000. The United Kingdom minister of the Crown will continue to exercise those functions as regards the rest of the United Kingdom.

I turn to the content of the order. Members will have seen the note that has been prepared by the Executive, which explains briefly the various entries in the order. The order transfers to Scottish ministers the power to commence in Scotland sections 101 to 103 of the Access to Justice Act 1999, which will amend the Taxes Management Act 1970, and to make associated regulations.

The amendments concern immunity and indemnity for general commissioners of income tax and their clerks in relation to costs orders arising from the execution of their duties. Similar amendments have already been implemented in England, Wales and Northern Ireland, where general commissioners are appointed by the Lord Chancellor. Because Scottish ministers appoint general commissioners in Scotland, it is appropriate for them to implement changes here, once the necessary powers have been transferred by the order.

On the rehabilitation of offenders, the Rehabilitation of Offenders Act 1974 sets out to make life easier for people who have been convicted of a criminal offence but who have subsequently lived on the right side of the law. If a person does not receive a further conviction by the end of their prescribed rehabilitation period, their conviction becomes spent. In general, that means that they do not have to declare the conviction and cannot be prejudiced by it. Sections 4(4) and 7(4) of the Rehabilitation of Offenders Act 1974 allow subordinate legislation to be made that excludes or modifies the application of, or makes exceptions to, the regime for rehabilitation of offenders under the 1974 act.

The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, as amended, is made under sections 4(4) and 7(4) of the 1974 act. It sets out categories of employment that involve a particular level of trust to which the 1974 act does not apply and for the purposes of which convictions never become spent.

It is important that Scottish ministers have the power to amend all aspects of the exceptions order, even if an amendment might have an impact on a reserved area—financial services are particularly important in that respect. The Executive will continue to liaise with the Home Office to ensure consistency, but the order allows Scottish ministers to amend the exceptions order for Scottish purposes. I would be happy to respond to any comments from the committee on that matter.

I do not want to speak at length about the Transport Act 2000, because the transport section of the order has already been considered by the Transport and the Environment Committee. That committee's only query has been dealt with in correspondence from the Minister for Enterprise, Transport and Lifelong Learning. I understand that the Justice 1 Committee has received Mr Gray's response, which was copied to the Transport and the Environment Committee.

I hope that the committee will approve the transfer of functions to Scottish ministers that is set out in the order.

I move,

That the Justice 1 Committee, in consideration of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2003, recommends that the Order be approved.

On the rehabilitation of offenders, will the order have any effect on the sex offenders register?

No—the order is not related to the sex offenders register. As I said, the order might be most relevant to financial services, where issues of trust are self-evidently important. The order is important in respect of offences such as fraud.

So we are speaking about relatively minor offences.

They might not be minor offences. The important point is that in occupations in financial services, for example, it is important for a prospective employer to know about a previous conviction, albeit beyond the time by which in other circumstances the conviction would become spent. The person might still get the job, but the conviction would have to be disclosed.

Will a list of offences be made available?

The purpose of the order is to transfer the function to ministers. A consultation paper on a new exemptions order was issued towards the end of last year—in fact, I have a copy of the paper with me—and the consultation is open until 24 January. Copies of the consultation paper are available. The consultation would be the subject matter of a subsequent order to be brought before the Parliament.

On transport provisions and the transfer of functions relating to shipping services, what services did the draftsmen have in mind?

Mr Gray's letter to the convener of the Transport and the Environment Committee states:

"The transfer of this function under the Order will provide Scottish ministers with an expanded power to award Freight Facilities Grant (FFG) for short sea shipping movements and thus aid Ministers in the implementation of our policies relating to the carriage of freight by inland waterway or sea, and in general for developing an integrated and more sustainable transport system for Scotland by removing heavy goods vehicles from Scottish roads."

How often did you practise saying "short sea shipping movements" before the meeting, minister? That is pretty much what it says in the letter.

Indeed.

I have a question about the transfer of the function in relation to professions under the Rehabilitation of Offenders Act 1974. If the Scottish Executive is to regulate professions under the act, why should not it do so for all aspects of the professions in Scotland? It is my understanding that that could be done under sections 29(3) and 29(4) of the Scotland Act 1998.

I recall from many debates at Westminster on the Scotland Bill that the organisation and regulation of a number of professions are reserved under schedule 5. Westminster took that policy decision. The relevant provisions are contained in the act as passed. The policy point about the rehabilitation of offenders is limited.

I appreciate that. The transfer of the function in relation to the rehabilitation of offenders raises an interesting ancillary question about whether the Scotland Act 1998, which includes discretionary parts, makes it possible for the professions in Scotland to be regulated wholly within Scotland under the Executive's auspices.

I think that a section 63 order could apply in theory, although I am speaking off the top of my head.

I like it when you speak off the top of your head.

Yes, it is always much more entertaining. A section 63 order could be made in relation to the transfer of executive functions to Scottish ministers, although legislative matters would still be reserved to Westminster. That is a much wider topic than the issue that we are considering. Theoretically, what you suggest would be possible, but no such proposal has been made.

That was an interesting answer.

On the Transport Act 2000, the Scottish Executive note says that the function of providing grants

"for shipping services that start or finish or both outside Scotland … will be exercisable concurrently with the Minister of the Crown".

How will that work? In relation to a ferry from Argyll to Northern Ireland, for example, will that mean that the minister of the Crown pays half and that we pay half or will either party have the option of paying the whole lot?

That would be a matter for negotiation. At least Scottish ministers will be competent to enter into such an agreement.

That would be more a matter for the Minister for Enterprise, Transport and Lifelong Learning.

The detail about who contributed what would be a matter for negotiation; it might vary from one case to another. The purpose of the order is to make Scottish ministers competent to enter into any such agreement.

Motion agreed to.

That the Justice 1 Committee, in consideration of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2003, recommends that the Order be approved.

The committee is required to report to the Parliament on the affirmative instrument. The report need only be short and formulaic. I propose to circulate the report to members by e-mail, so that they can approve or object, as appropriate.