Subordinate Legislation
Risk Assessment and Minimisation (Accreditation Scheme) (Scotland) Order 2006 (draft)
Under agenda item 4, the committee has a draft order to consider under the affirmative procedure. I invite the minister to speak to the draft order.
The scheme that is set out in the draft order marks an important step towards finalising the arrangements that were introduced by the Criminal Justice (Scotland) Act 2003 for dealing with serious violent and sexual offenders. The act provided for a new sentence—the order for lifelong restriction—to deal with very high-risk offenders. The act also enabled the establishment of the Risk Management Authority as a centre of expertise on the assessment and management of risk. Within its broad remit, the RMA has roles in policy, research and developing guidelines and standards. It is important that assessors and the methods and practices that they will use meet agreed quality standards.
The 2003 act gives the Scottish ministers the power to make an order to introduce the accreditation scheme for individuals who are involved in assessing and minimising the risk that offenders pose and for the methods and practices that are to be used to assess and minimise that risk. The act also provides that the RMA will administer that scheme. Working within the statutory scheme, the RMA will accredit individuals and manners for any type of risk assessment and minimisation. The RMA will also be able to deal with applications for accreditation, the removal of accreditation and appeals against those decisions. The scheme also provides for complaints and the maintenance of a register of accredited persons and manners by the RMA.
The accreditation scheme will have a practical effect on the process to support orders for lifelong restriction, which we intend to bring into force this summer. The 2003 act requires that if an offender meets the statutory risk criteria, the court must impose an OLR, but before that stage is reached, the offender must undergo a risk assessment under a risk assessment order. The court must also appoint an assessor to undertake the risk assessment. That assessor must be accredited and the assessment must be in accordance with an accredited manner.
The Executive has worked with the Risk Management Authority to set up the day-to-day working arrangements, so that things can be set in motion as quickly as possible, to ensure that accredited risk assessors and accredited manners are in place to support the OLR. The RMA has consulted stakeholders on the application process, criteria and methods of evaluation that will be the scheme's building blocks. The responses to that consultation will be published in April in the form of standards and guidelines for risk assessors and will cover the administrative procedures for the accreditation process.
The draft order that is before the committee provides the proper structure to enable the RMA to proceed with that important work, and I hope that the committee will recommend approval of the draft order.
I note the Subordinate Legislation Committee's view that the fact that the Executive has—for good reason—been more prescriptive in some articles about requiring reasons for decisions to be given amounts to inconsistent drafting and failure to follow proper legislative practice, but I disagree profoundly with that view. As the SLC notes, the Executive explained why it adopted its approach. Indeed, the SLC's report concedes that
"specific provision on the giving of reasons is not strictly necessary".
We have made specific provision when it was considered that, in particular circumstances, that would provide useful reassurance or be of obvious significance, for example.
Otherwise, we have relied on the basic principle that it is good administrative practice that how the RMA and its committees exercise the powers that are delegated to them should be clear and transparent. It follows that, as a matter of best practice, the authority would give reasons for its decisions. The nature of the decisions means that they require explanation. It is inconceivable that the RMA would respond with simply a yes or no. I confirm that, in its information pack for applicants, the RMA makes it clear that all relevant reasons for decisions will be disclosed. The RMA's committees will be advised of that process and reminded that they will have to provide reasons for their decisions to successful and unsuccessful applicants.
The point is fundamentally about different views on style and not about whether we have departed from consistent legislative practice. We are content that the draft order, which takes account of helpful comments from the SLC's legal advisers, the practice guidelines and the information that the RMA has issued will achieve exactly the same outcome as would an order that was revised along the lines proposed by the SLC.
I thank the minister for clarifying the Executive's response to the SLC. Do members have questions?
I have two brief questions. Will the criteria that are used be closer to international criteria? I understand that, in recent years, moves to achieve more consistency in risk management have been made. For example, the risk matrix 2000 tool for risk management has been used, which is a step towards a European and international standard. What consideration has been given to that?
My second point probably results from my not understanding article 4 of the draft order, which is about the accreditation committee that is to be formed. How many members is that committee expected to have? Forgive me if the answer is in the draft order. The article says:
"The Authority shall appoint a minimum of two of its members to form the accreditation committee"
but does not say what the committee's size will be. If the committee has a minimum of two members, I suppose that it could have a maximum of two members. There could be the curious situation in which the authority
"shall not so appoint the convener"
but
"shall appoint one of those members to chair the committee."
There could be a two-member committee without a convener but with a chair.
On Jeremy Purvis's first point, the RMA is aware of international practices; indeed, one of the purposes of establishing it was to bring best practice from elsewhere and apply it here. We aspire to meet the best possible standards; indeed, I hope that our ultimate aspiration is to set practices that others will want to follow.
On Jeremy Purvis's second point, the figure for the number of members that he is seeking is, in fact, three.
I put on record the fact that the Executive has reassured us today. The Subordinate Legislation Committee said that it
"recognises that specific provision on the giving of reasons is not strictly necessary and that guidance being considered will assist the reader."
I am afraid that that committee then contradicted itself by saying that there is "inconsistent drafting" in the draft order. I do not think that there is. The issue is whether cases and decisions are dealt with sensibly. The Executive has stated that having to give reasons for every decision would
"render the Order unduly cumbersome".
I agree.
The Executive has also said that general reasons for a decision will be given with that decision, which is only common sense. The SLC has pointed out potential improvements, as it always does, and the Executive has taken on board what it has said, but its main criticism does not hold water. I do not think that there has been inconsistent drafting. We should accept what the Executive has said. As the minister said, decisions on the accreditation of those who assess risk are important. Things have been done correctly.
I rise to the defence of the Subordinate Legislation Committee, given that it has been unfairly attacked by the minister and this committee's deputy convener. The Subordinate Legislation Committee's view was that the drafting of the draft order should be "helpful to the reader". That was the single thought behind the reasons for bringing the draft order to the attention of the Justice 2 Committee and for the Subordinate Legislation Committee's recommendation. It seems to me that we should always attempt to make subordinate legislation clear and consistent for people who must use it and that therefore we should make the draft order that we are discussing clear and consistent. That is not an unreasonable suggestion.
The Executive's view is that having to give reasons for every decision may make the draft order "unduly cumbersome", although it may not do so. The Subordinate Legislation Committee cannot foresee how decisions will be published in the future—we do not have an example of that. The intention that all decisions should be explained may be common sense; however, given that the draft order says that certain decisions will be explained, a doubt is raised that other decisions may not be explained. It was not unreasonable for the Subordinate Legislation Committee to point out the matter even if only for the benefit of this committee so that we could raise the matter with the minister. Pointing out such things is one of the duties of the Subordinate Legislation Committee. I supported—and still support—the decision that there was inconsistent drafting.
As members have no other comments to make or questions for the minister, I invite the minister to move motion S2M-4003.
Motion moved,
That the Justice 2 Committee recommends that the draft Risk Assessment and Minimisation (Accreditation Scheme) (Scotland) Order 2006 be approved.—[Hugh Henry.]
Motion agreed to.
I thank the minister and members of his staff for attending the meeting. We now move into private session.
Meeting continued in private until 15:56.