Justice Committee
Meeting date: Tuesday, May 15, 2012
Official Report
370KB pdf
Criminal Cases (Punishment and Review) (Scotland) Bill: Stage 2
Item 2 is stage 2 of the Criminal Cases (Punishment and Review) (Scotland) Bill. The stage 2 proceedings today are the first and only such proceedings on the bill. I welcome the Cabinet Secretary for Justice and his officials.
Members should have copies of the bill, the marshalled list and the groupings of amendments for consideration.
Sections 1 and 2 agreed to.
Section 3—Exception to non-disclosure rule
Amendment 1, in the name of the cabinet secretary, is in a group on its own.
Amendment 1 provides that, where the Scottish Criminal Cases Review Commission has determined under the framework in the bill that it is appropriate in the whole circumstances for information that relates to a case to be disclosed, that disclosure
“is not prevented by any obligation of secrecy or other limitation on disclosure ... including any such obligation or limitation imposed by, under or by virtue of any enactment”.
The amendment explicitly provides that that general override does not apply to any court interdict or other court order. In other words, if a court’s decision is that information should not be disclosed by the commission, that information cannot be disclosed, even if the commission considered that it was appropriate to disclose it. The amendment addresses a concern that the Scottish Criminal Cases Review Commission expressed in its evidence to the committee that the bill as introduced did not provide the necessary authority for it to disclose information that is covered by legal professional privilege.
It is important to note that the effect of amendment 1 is not that any such obligations will be treated as if they do not exist; rather, the amendment is intended to ensure that such obligations do not constitute an absolute bar to disclosure. The commission would have to consider those obligations and weigh them in the balance before it reached a conclusion on whether it was appropriate to disclose information. In doing so, the commission is required to take account of any representations that it receives from an affected person or another interested person regarding the decision to disclose information. The fact that information is covered by legal professional privilege or that a duty of confidentiality or a statutory duty of non-disclosure applies to the information may be considered by the commission to be a factor that argues against disclosure. However, amendment 1 ensures that that does not represent an absolute barrier to the release of information.
It is important to consider the effect of section 101 of the Scotland Act 1998. Amendment 1 does not affect any restriction or limitation on disclosure that is imposed by any reserved legislation. Members will be well aware that the Scottish Parliament cannot legislate on matters that are outside its competence. All acts of the Scottish Parliament require to be read in the context of section 101 of the Scotland Act 1998, which provides that they are to be read in a way that is consistent with the devolved competence of the Parliament. As such, amendment 1 does not affect any obligations of secrecy or other limitation on disclosure relating to reserved matters, such as the Official Secrets Acts.
I move amendment 1.
Amendment 1 agreed to.
Amendment 2, in the name of the cabinet secretary, is grouped with amendment 3.
Amendment 2 is a minor technical amendment that is intended to improve the drafting of new section 194N(1) of the Criminal Procedure (Scotland) Act 1995, on the framework for the consideration by the commission of the release of information. It is intended to avoid any inadvertent implication that a third party can cause—that is to say, require—the commission to consider the question whether it is appropriate to disclose information that relates to a particular case. The policy intent is to provide the commission with a power rather than a duty to consider disclosing information relating to a case that it has referred to the High Court and which has subsequently been abandoned.
During stage 1 scrutiny of the bill, it was noted that there have been only three commission cases in 13 years that would trigger the framework in the bill. We expect there to be only rarely a significant public interest in the disclosure of information that relates to triggered cases, and we do not wish to impose unnecessary costs on the commission by requiring it to consider the disclosure of information in cases in which there is no public interest in doing so.
The bill provides that, where the Lord Advocate has obtained information directly or indirectly from a foreign authority, the commission is required to obtain the consent of that authority before releasing that information. Such an approach will ensure that our international obligations are respected and that foreign authorities retain control over disclosure of their information.
Amendment 3 is a minor technical amendment that seeks to apply the same requirement that applies to foreign authority information obtained by the Lord Advocate to information obtained from foreign authorities by the commission in the course of its own investigations. Whether the commission obtains the information directly or indirectly, amendment 3 seeks to ensure that the foreign authority’s consent will be required. It is worth putting on the record that, with the United Kingdom Government, we are continuing to consider this area of the bill to ensure that we are satisfied that the bill fully respects our international obligations and that the commission will have to get consent from foreign authorities to disclose information received from them, irrespective of the route by which the commission obtains that information. If necessary, we might revisit this area at stage 3.
I move amendment 2.
Amendment 2 agreed to.
Amendment 3 moved—[Kenny MacAskill]—and agreed to.
Section 3, as amended, agreed to.
Sections 4 to 6 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank the cabinet secretary for that rather swift performance.