Justice Committee, 19 Jan 2010

Meeting date: Tuesday, January 19, 2010

Official Report 179KB pdf

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Crime and Security Bill

The Crime and Security Bill, like the Bribery Bill, is UK legislation. The minister is joined by his officials: Elizabeth Sadler is head of the organised crime unit in the police division; and Kevin Gibson is from the legal directorate. I invite the minister to make opening remarks.

The legislative consent motion will seek approval for the UK Parliament to apply relevant clauses of the Crime and Security Bill that would otherwise fall within the devolved competence of Scotland. The clauses in question are clauses 39, 40 and 45. Clauses 39 and 40 will amend the Private Security Industry Act 2001 on matters within the Parliament's legislative competence; clause 45 will confer on the Scottish ministers a new power. I stress that those are the only provisions in the bill that fall within devolved competence. Other issues that are addressed in the bill are for the UK Parliament to consider.

The clauses in question make provision to build on the existing system of regulation, which is contained in the 2001 act. Under the 2001 act, individuals who work in the security industry must be properly trained, licensed and subject to periodic review, to ensure that they maintain high standards of service. The provisions will strengthen the existing regime by allowing regulation to be extended to cover companies as well as individual operatives.

I am sure that we all agree that the private security industry has improved significantly since the Security Industry Authority started to regulate individuals who work in designated sectors in 2005. The authority's work has received cross-party support in the past. The provisions are minor, but they will help to build on that work.

The 2001 act introduced a regulatory regime for licensing by the SIA of individuals who work in designated sectors of the private security industry. The UK Government has now identified an issue that relates to vehicle immobilisation in England. Regulation of those who undertake clamping and the like applies only to individual operatives and has not prevented abuses, which often result from a company's policy rather than an individual's conduct.

To tackle that, clause 39 introduces mandatory regulation of businesses that engage in vehicle immobilisation. Vehicle immobilisation on private land is illegal in Scotland, so the need to regulate individuals or businesses that immobilise vehicles does not extend to Scotland. Aimed squarely at company regulation, the provision allows for sole traders and other individuals who operate independently as a business to require to be licensed as a business.

Clause 39 also introduces an order-making power that would allow mandatory licensing of businesses to be extended to other sectors of the private security industry. Such sectors would most likely have some presence in Scotland. The extension of mandatory regulation to any other sector is not currently planned, but it makes sense to introduce the enabling power in Scotland at the same time as in the rest of the UK. That will give the Scottish ministers the power to designate sectors that should be subject to business regulation, by making an order after consulting the Home Secretary.

The SIA operates a voluntary approved contractor scheme for the private security industry. The scheme reassures users of private security firms that such companies use licensed staff who meet rigorous standards that the SIA sets out. The scheme currently applies only to companies that provide private security operatives under contract. Clause 40 provides for the scheme to be extended to include in-house providers of security services. That will allow security companies to develop their businesses by providing services such as training to other companies and to apply for approved contractor status. It will also allow in-house private security operations, such as the door supervision and in-house security operations of a major pub chain, to seek approved contractor status to demonstrate their commitment to quality.

The approved contractor scheme is best extended in that fashion UK-wide, as several companies that might seek to improve their operations on the basis of this development have operations throughout the UK. The provision will promote the development of excellence in in-house private security operations and allow that excellence to be recognised.

Clause 45 is consequential on clauses 39 and 40 and provides for the Scottish ministers to bring the clauses that amend the 2001 act into force in so far as they apply to Scotland, after consulting the Home Secretary, who has overall responsibility for the Security Industry Authority.

The provisions will enhance further the regulation of the private security industry in Scotland and will allow us to take further steps to regulate businesses, in addition to individuals, when that is appropriate. I therefore ask the committee to support the draft legislative consent motion.

You have anticipated some of our questions, but we will begin with Angela Constance.

Good morning, minister. You might well have answered my question in part, but I will ask it anyway for clarity and for the record, so I ask you to bear with me.

The memorandum says that the Scottish ministers have

"no plans to extend mandatory regulation of businesses to any other sector"

of the private security industry. As the minister said, the memorandum also says:

"As vehicle immobilisation on private land is illegal in Scotland … regulation of individual vehicle immobilisers does not extend to Scotland and there is consequentially no need for companies to be regulated."

Given that, will the minister outline what the powers could be used for in Scotland?

As Angela Constance says, there are currently no plans to extend mandatory regulation of businesses to any other sector of the industry, but we take the view that it is sensible to avail ourselves of the opportunity, if you like, to acquire powers to extend such regulation to other sectors of the industry should we in future decide so to do. The reason, in part, for the motion is to enable Scottish ministers to be in possession of such powers in case it is later adjudged that they need to be exercised.

The question invites me to speculate on what sectors we might, in due course, apply the powers to. I am not sure that it would be prudent for me to set hares running now, because it is inevitable that, if I begin to speculate, people will draw conclusions that, I suspect, would not be justified. I hope that members agree that it would be sensible for us to take the opportunity to acquire powers, because we are all concerned about some of the activities that have taken place in the security industry in general. That is why, as I alluded to, we united on a cross-party basis to provide for licensing and training in the sector. As far as I have been able to see, that approach appears to be working. For example, I recently observed late-night entertainment at an establishment in Hamilton and the stewards seemed to be doing their job very well. That is an anecdotal example, but I hope that it reflects a general view, which members may share.

I appreciate the minister's concerns about the unintended consequences of speculation and setting hares running. However, given that he is, in his own words, seeking an enabling power that may be used at some point in the future, can he give a practical example of why he seeks that enabling power?

We are seeking the power because we recognise that this is a very sensitive and important policy area. In future, we may well need powers to introduce regulation. Of course, were we to do so, there would be consultation with the Home Secretary and full consultation with the Parliament, so we would not seek to take anyone unawares—not that we ever do that, convener, even if we wish to.

I appreciate that the member wants me to give an example but I take the view that, if I were to give an example, that sector of the industry would immediately assume that we have secret plans to regulate it. In turn, that would lead to unsought turbulence and difficulty of the sort that we generally try to avoid.

Yes, you have a very good track record on that, Mr Ewing.

I will press the minister one last time. I am not trying to cast any aspersions about the Government not going through due process and all the rest of it—God forbid. I am just looking for an illustrative example.

I admire the member's persistence and I hope that she will forgive me if I boringly repeat the answer that I have already given. Elizabeth Sadler might be able to be of some help.

It might be helpful to explain the rationale for the additional licensing requirement on vehicle immobilisation, where there is an issue. Licensing currently bites on the individual operative at all levels in the organisation, from directors down to individuals who work in the industry. A number of issues have been identified in relation to vehicle immobilisation south of the border, such as release fees and the criteria that are used to determine when to clamp a vehicle where the individual operative is acting under the orders of the company and is following company policy. It is therefore the company's policy and the way that it carries out its business that leads to abuses, rather than the actions of the individual operative. For that reason, the Home Office has identified that, in the case of vehicle immobilisation south of the border, there is a need to regulate businesses in addition to individual operatives.

At the moment, there are no examples of such company abuse being rife in other sectors of the industry and therefore requiring to be regulated. However, in taking the power to regulate an individual business area, it seemed sensible to have an enabling power that would make it easier to extend business regulation if such situations were found in other sectors of the industry in future. That does not answer your question, but I have given an example of the type of behaviour that has led to the need for business regulation in that sector. I hope that that helps.

Yes. It is illustrative. Thank you.

I would like a wee bit more clarity. I will be careful about how I word my question.

Constituents have expressed concerns to me about whether we have got the regulation and licensing of the security industry right—I suspect that Angela Constance's constituents have expressed concerns to her about that, too. The issue of security firms that allegedly have contacts with criminal groups being able to tender for and win public contracts from the Government, local authorities and health boards, for example, has been raised with me. If we agree to the legislative consent motion, will the bill give the Scottish ministers, with the approval of the secretary of state—I think that it is worded in that way—the power to look at that matter and consider change if that is necessary?

Cathie Craigie is correct to raise issues that will be understood by all members. The areas that the Security Industry Authority is responsible for regulating are clearly set out in schedule 2 to the 2001 act. Of course, the Scottish Government is taking rigorous action on organised crime more generally through the work of the serious organised crime task force, and I am sure that members remember the specific provisions that are included in the Criminal Justice and Licensing (Scotland) Bill, in which we propose that Parliament consents to new measures that will create new offences in order to tackle serious and organised crime. We debated those provisions just before Christmas, I think. We are concerned about matters cognate, but my understanding is that the powers that I alluded to earlier and to which Angela Constance referred would not be the most appropriate way to address some of the issues to which Cathie Craigie rightly referred. Those issues are being dealt with in other ways.

Does Elizabeth Sadler have anything to add?

I missed the end of Cathie Craigie's question. Was it about private security firms that tender for public contracts?

Yes. Things can move on. When we bring in licences and regulations, another loophole seems to be found.

On manned guarding and securing of buildings that are being built, the Cabinet Secretary for Justice recently announced that, with all Scottish Government procurements that involve a private security requirement, the company will be required from now on to be a member of an approved contractor scheme through the SIA. The approved contractor scheme puts in place safeguards relating to the probity of the company, its directors and the people it uses—licensed staff and so on. That will be a requirement for all Scottish Government contracts, whether it is a direct contract or a sub-contract.

Scottish Government procurement experts also recommend that other public bodies that are not within the direct control of the Scottish Government adopt a similar policy. The provision does not extend to other areas of public contracts; it affects only companies that fall within the definition of a private security industry company.

Does the change require parliamentary approval or legislative change?

No. It will simply become a condition of the contract between the company and the Scottish Government for the provision of private security services that the company is a member of the SIA's approved contractor scheme.

That line of questioning leads me to think that the matter could be considered in conjunction with the Criminal Justice and Licensing (Scotland) Bill, which is before us at the moment.

We are happy to hear from the committee if it wishes to make further representations in that regard. It is not too late to consider amendments, although I suspect that the clock is ticking towards midnight.

There are still two stages of the bill to go.

Yes.

The minister has covered this area to an extent, but I want to go over the three points that the Subordinate Legislation Committee raised in its report on the memorandum. First, on the power in clause 39, vehicle immobilisation on private land is illegal in Scotland, yet there is no express exclusion for Scotland. What is the Government's view on the Subordinate Legislation Committee's point that, given that vehicle immobilisation on private land is illegal in Scotland, there seems to be little purpose in having the power here?

As I understand it, the power is required not in relation to vehicle immobilisation, but in case we need the general powers to apply the provisions of clause 39 in Scotland in relation to other sectors. As I sought to explain in my opening statement, clause 39 will extend the requirement to be licensed to individuals who operate as businesses. In other words, it identifies a general gap in the law. It is an offence under the 2001 act for an unlicensed individual to engage in an activity for which a licence is required, so it is necessary to make it clear, as new clause 39 does, that businesses require to be licensed by the SIA. At the outset, therefore, businesses that carry out vehicle immobilisation activities will require licences.

Stewart Maxwell is right: the provision is required because of a problem that exists in England but not Scotland. However, because general powers are being created to deal with the matter, we felt that it would be useful to avail ourselves of the opportunity to acquire those general powers. I would appreciate Kevin Gibson giving further information about our approach.

The general powers are taken in conjunction with specific powers about vehicle immobilisation that extend to Scotland but which do not apply to Scotland because they are disapplied elsewhere in the 2001 act. It is a technical point.

Do you not, however, accept the SLC's point, which is that it is confusing to take a specific power on vehicle immobilisation, which is illegal in Scotland? I accept your point about the general power.

It is certainly an unusual approach, but it is consistent with the 2001 act. It was thought to be a more straightforward way of amending the legislation. I think that a different approach would have required much more extensive amendment of the 2001 act than is proposed.

Are you saying that you do not accept the SLC's point that it is confusing to have a specific power in Scotland to have a regulatory regime over something that is illegal?

It is clear from the terms of the 2001 act that the power does not apply to Scotland.

Yes, I know, but we are talking about the Crime and Security Bill, the proposals in which, I think, seem at the very least to confuse the issue slightly in the minds of the general public.

I do not accept that the matter is confusing; it is confusing only if one does not read the amendment in context.

It might be regarded as opportunistic, rather than as unusual or confusing. We are taking advantage of an opportunity that should not be sniffed at, to acquire powers that members might agree could be useful in the future.

As the minister is probably aware, I have no argument about the general power that is being suggested. I am concerned about the specific power over something that is currently illegal in Scotland.

The clerks note states:

"The second issue raised by the SLC was that although Scottish Ministers can designate activities undertaken by businesses which are to be subject to the new regulatory regime, this will be subject to the overriding power of the Secretary of State to prescribe circumstances in which a business (which would otherwise be caught by the regulations) will not be guilty of an offence."

Can you comment on that, minister? It seems to be slightly odd that the secretary of state has, in effect, a veto over something that this Parliament would have agreed.

Do you mean the secretary of state's power to grant exemptions from licensing arrangements?

Yes.

That mirrors the existing approach to licensing of individuals under section 4 of the 2001 act. In other words, what is currently provided for individuals will now apply to businesses. It is a mirror provision that is designed to ensure consistency, and it will ensure that exemptions are granted on a UK-wide basis. In practice, the power to grant exemptions is used only where the organisation can demonstrate that its staff—or its business, in the case of business licensing—are subject to suitable alternative arrangements. It is further defined in the 2001 act as arrangements that are

"equivalent, for all practical purposes so far as the protection of the public is concerned, to those applying to persons applying for and granted licences."

There is currently only one exemption in place, which covers security staff at airports. Those staff are regulated by TRANSEC—the transport security and contingencies directorate—which deals with aviation and is overseen by the Department for Transport. It imposes on staff criminality and competence criteria that are equivalent to, or more stringent than, the SIA licence. To require an SIA licence as well would therefore be unnecessary.

Section 24(4)(a) of the 2001 act imposes a duty on the secretary of state to consult Scottish ministers ahead of making any such exemptions. I am satisfied that that ensures that our views on any exemption would be taken into account.

I am pleased to hear about the requirement to consult Scottish ministers. However, the third issue that the SLC raised is that there is no power for Scottish ministers that is equal to the secretary of state's power with regard to exemptions from the licensing requirement in the new section 4B(1) of the 2001 act. It seems slightly odd that, as you have said, Scottish ministers would be taking new powers to regulate businesses at some point in the future—it may come about—but would not have a power that is equivalent to that of the secretary of state with regard to exemptions. Effectively, you would introduce regulation for certain businesses, but you would not be allowed to create exemptions without going to the secretary of state. Is not that a rather cumbersome way of doing things? Have you considered approaching the secretary of state or the UK Government about allowing Scottish ministers an equivalent power in relation to new regulations?

I envisage that the powers would have limited—if any—applicability. Elizabeth Sadler has more information, which might cast some light on that hitherto unexplored area of law.

The exemptions apply to particular sectors within a sector of licensable activity. The provision does not allow a secretary of state to exempt a whole category of licensable activity: it simply allows him or her to say that falling within that category is a particular group of people for whom the secretary of state is satisfied—on the advice of the Security Industry Authority—that the measures that are in place are equivalent to, or better than, the SIA licence with regard to competence and criminality. The exemption provision is used sparingly: it is currently used only for security officers at airports, because the standards that they are expected to meet are significantly higher than those that must be met for an SIA licence. In practice, exemptions are made on the advice of the SIA, which has to be satisfied that the exemption is well founded. As the minister says, it is highly unlikely that there would be a category in which there was an exemption only in Scotland and not in the rest of the UK.

It seems odd to take the power to regulate in areas that are as yet undecided, but not to have a power that is equivalent to the power of the secretary of state regarding exemptions for as-yet-unforeseen circumstances, although I accept what the Government has said. There may be only a slight chance that that would occur, but, when powers are being brought in, I would have thought it preferable to dot every i and cross every t.

I can see that there is a theoretical point to be made. At the moment, any such areas are exempt, as no regulation is attached to them. If, in the future, we wish to have such regulation, the issue might arise. I tend to think, from the advice that we have had, that the procedure is designed for specific and limited circumstances. We are not overly concerned that that particular aspect will pose a practical problem in the future.

It might be helpful if I were to mention that the activities that are subject to control under the 2001 act at the moment, and which are regulated, include manned guarding, which includes cash in transit; close protection; door supervision; public space surveillance; security guards; and keyholders. A wide range of activities are already subject to regulation, which the public understands and we can all appreciate. In the future, we might consider fine tuning and tweaking the arrangements by making minor amendments. We already have in place the corpus of law that was brought in to try to protect the public and to regulate activities in the areas that I have mentioned, which gave rise to many instances of concern.

I want to address an issue that is not dealt with in the memorandum. Clause 2 and clause 8 will give powers to take DNA samples and fingerprints retrospectively in England and Wales and, separately, in Northern Ireland. The minister might be aware that we have had representations from GeneWatch UK, which expresses concerns that there are no meaningful restrictions on the provisions for retrospective DNA sampling and fingerprinting; that the provisions cover a wider group of people in England and Wales than they would do in Scotland; and that—because of the linkages with the Criminal Justice and Public Order Act 1994—powers will be created for people in Scotland to be arrested without warrant for offences under that legislation.

A number of issues arise from that. One relates to the fact that people can be arrested in Scotland under English, Welsh and Northern Irish warrants in situations that would not be covered by the legislation in Scotland, which is narrower. Does the minister have any comment to make on that? Linked to that is the issue that, apparently, samples can be collected regardless of whether the person is in police custody. The power appears to be so wide that things could be done to a person in Scotland arising from an offence committed elsewhere in the UK that could not be done to them with regard to an offence that had been committed in Scotland.

Robert Brown has raised a wide range of topics. I begin by saying that, aside from the subject matter of the motion, the bill does not extend to Scotland. The other provisions in the bill, as Robert Brown has said, contain a wide range of policing, crime and security measures that would not apply in Scotland and on which we have made, or are making, various provisions.

On the GeneWatch submission, clause 2 of the bill provides powers to take samples and fingerprints retrospectively without consent from persons aged 10 or over who have been convicted, cautioned or given a final warning for any recordable offence in England or Wales.

The GeneWatch submission asks how those provisions will operate for Scottish residents who receive one of the disposals that are listed for England and Wales. Home Office policy leads have confirmed that that is a drafting by-product of the fact that the criminal law applies individually to England and Wales, Northern Ireland and Scotland, whereas the law on nationality and residence applies UK-wide. We are told that there is no intention to take retrospective samples from Scottish residents in such circumstances. That means that there would be no requirement to attend a police station, no arrest for non-attendance and no issue of retention. The Home Office has offered to ensure that its minister puts that on the record during the passage of the bill. I am pleased to have the opportunity that has been afforded to me by Robert Brown to make it clear that the thrust of the issue that has been identified and raised will be dealt with by a minister in the Westminster Parliament, who will make it clear that the concerns need not concern us.

I am grateful for that reply, which seems to take us some distance further on. However, I want to be clear about what the minister is saying. As I understand it, the issue is about the collection of data of various kinds in Scotland, from Scottish residents, under orders from English courts. I understand that there are circumstances in which that might need to be done and, in so far as the law in England and the law in Scotland are the same, I do not see an issue of principle. However, are you saying that the powers of the English courts to order the taking of such samples would not extend to the rest of the UK, not least to Scotland? That might be satisfactory, but it seems to take us a distance away from where I thought we began.

If I have taken you away from the point, I can only apologise, as that was never my intention. Clause 44 makes it clear that the powers to which you refer do not apply to Scotland and extend only to England and Wales. Clause 44(1) states that clause 1, on police stop-and-search powers,

"extends to England and Wales only."

Clause 44(2) makes it clear that the provisions on fingerprints and samples

"extend to England and Wales only, except that section 5(2) extends also to Northern Ireland."

Clauses 44(3) to 44(6) make it clear that the provisions that relate to powers in respect of fingerprints, samples and other material—which, I presume, means DNA—extend to England and Wales only. GeneWatch is concerned, but the information that I have is that the provisions will not extend to Scotland, but will operate as a matter of law only in the jurisdictions of England and Wales and Northern Ireland, as is stated explicitly in clause 44.

For the avoidance of doubt, GeneWatch's proposition appears to be that the application to Scotland comes from the Criminal Justice and Public Order Act 1994 and agreed protocols under it, which allow arrest without warrant by an officer from England or Wales of a suspect who is found in Scotland. The minister might want to write to us on that. I accept entirely that the issue is enormously complicated and I am pretty certain that I have not fully understood the implications. Will the minister give an undertaking to scrutinise GeneWatch's representations with a fairly fine-toothed comb and ensure that the position that he has explained to the committee applies in all circumstances?

Another aspect relates to whether the powers in the bill are compatible with the European convention on human rights. I am in no sense casting doubt on the minister's good faith, but if there remains any doubt about the issue it would be helpful if the minister would undertake to get back to us in detail, rather than give an absolute answer now.

The advice that I have is that the provisions do not extend to Scotland. A number of scenarios have been put, and I am happy to provide further subsequent written assurances to the committee on all these issues. Plainly, I do not want inadvertently to misinform the committee in respect of any aspect of the questions that Robert Brown has put and the fairly technical issues that they raise.

We are here today because we believe that it is important that the motion be agreed to. However, I am quite happy to undertake to provide further reassurance to the committee and, in particular, to respond on the specific further technical aspects that Robert Brown has raised, if that would be of assistance.

That would be the appropriate way forward, bearing in mind that this motion is not going anywhere until next week at the absolute minimum. Are you quite content with that, Robert?

Yes. I am happy with the assurance that the minister has given on the principle of the matter. I appreciate that the detail can be sorted out later on. It is a complex matter, and I am not sure that I have fully understood the issues that are raised, which are important. It is worth taking that little bit of extra time to be sure about the matter.

Yes. I think that that is the case.

In its submission, Children in Scotland expresses the view that clause 42 will effectively prohibit air-weapon use by people under 18, and that that represents a departure from the current position, which is that young people aged between 14 and 17 can use air rifles and can do so on private land without supervision. Will the minister detail his understanding of the effect of those provisions and advise us whether any consideration has been given to the issues that have been raised by Children in Scotland in that regard?

Certainly. As I understand it, all those matters are reserved. However, clause 42—the offence of allowing minors access to air weapons—will amend the Firearms Act 1968 and, like that act, extends to Scotland as well as to England and Wales. Children in Scotland takes the view in its submission that the provisions in that clause will effectively prohibit air-weapon use by people under 18. However, the actual effect of the provisions is to make it an offence for a person who is in possession of an air weapon to fail to take reasonable precautions to prevent its coming into the hands of a person under 18. The offence does not apply where the person under 18 is permitted by the act to have the weapon with him or her. Those circumstances are set out in section 23 of the 1968 act. Therefore, the provision does not restrict legitimate use by persons under the age of 18. I support the provision and we welcome the creation of that new offence in this area of law.

That is very clear. I welcome the minister's assurances on that.

Thank you. There are no further questions, so I thank the minister and his officials. Although there is no tremendous urgency, we would appreciate the minister letting us have more specific answers to the GeneWatch questions by the start of next week at the latest.

There will be no problem with that. The committee will have the assurances and information by then.

Meeting suspended.

On resuming—