Justice Committee

Meeting date: Tuesday, June 19, 2012

Official Report 401KB pdf

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Crime and Courts Bill

At our meeting on 29 May, we agreed to invite the Minister for Community Safety and Legal Affairs to discuss the legislative consent memorandum on the Crime and Courts Bill, a piece of United Kingdom legislation. The committee will consider its report on the LCM under item 12. We have received three written submissions on the LCM, including comments from the Subordinate Legislation Committee, all of which are included in our papers.

I welcome the minister, who is joined by two Scottish Government officials: John Nicholson, the head of organised crime strategy; and John Somers, the head of the drugs policy unit. I remind members that we should keep our attention focused on the provisions in the bill that require the legislative consent of the Scottish Parliament, as we have to report only on those. I invite the minister to make a short opening statement.

Thank you for the opportunity to discuss the provisions of the Crime and Courts Bill. Scottish Government officials have been working closely with UK Government officials on the content of the bill, negotiating a number of changes to ensure that Scottish circumstances were considered and included in the bill.

Many of the provisions in the bill are reserved to the UK Parliament. Today, we are principally concerned with the three categories of provision that are referred to in the draft legislative consent motion, to the extent that they fall within this Parliament’s legislative competence or alter the Scottish ministers’ executive competence. Those provisions relate to the establishment of the national crime agency, the specification of the controlled drugs and the applicable limits that trigger a new drug driving offence, and consequential amendments regarding legal aid in Scotland, which is associated with the extension of the powers of the UK Border Agency immigration officers.

On the establishment of the national crime agency, the main purpose of the bill will be to repeal the legislation that established the UK Serious Organised Crime Agency and replace it with the new national crime agency. Obviously, tackling serious organised crime is a top priority for both Governments, and the serious organised crime task force, which is chaired by the Cabinet Secretary for Justice, was set up in 2007 to ensure that Scotland can respond robustly to the threat that is posed by organised crime. The Home Office proposals to establish the NCA are expected to support work in that priority area and provide an enhanced UK-wide response to the threat of serious, complex and organised criminality.

The bill will establish the NCA based on similar legislative provisions to those that currently apply to SOCA. The Scottish Government has ensured that the necessary legislative safeguards that existed for SOCA’s operational activity in Scotland have been replicated in the legislation to establish the NCA. As SOCA has done, the NCA will operate across the UK, including Scotland, and will work closely with Scottish police and law enforcement agencies and with the Crown Office and Procurator Fiscal Service in tackling serious organised crime.

Obviously, crime detection and prevention and the investigation and prosecution of crime are all devolved matters, and those are the aspects that fall within the Scottish Parliament’s legislative competence. The bill will also confer new functions on the Scottish ministers in order to alter their executive competence. Accordingly, those provisions will require the consent of the Scottish Parliament.

The bill will introduce a new drug driving offence that will apply to Scotland, England and Wales. Action in that area is reserved, but one aspect of the new offence is being executively devolved. The relevant provision will confer on the Scottish ministers a function to make regulations that specify the controlled drugs to which the new offence will apply and set the applicable drug driving limit. The Cabinet Secretary for Justice wrote to the Home Secretary last month to confirm that the Scottish Government is content to give agreement in principle to the proposed drug driving provision, subject to the caveat that it will wish to consider the report and recommendations on drug driving from the UK Government’s expert panel, which was announced in January 2012, before it makes any final decision on its implementation. As the provision alters the Scottish ministers’ executive competence, it requires the Parliament’s consent.

There are other consequential immigration amendments, to which I have referred. The bill will extend the range of powers that are afforded to immigration officers, which is largely a matter for the UK Government, as the powers will be exercised only in relation to immigration crime. However, there are implications for us, as the proposals would extend the powers under the Proceeds of Crime Act 2002 to UKBA officers and also provide UKBA immigration officers with the powers to detain suspects prior to arrest, in connection with immigration offences. One consequence of those changes will be an amendment to legal aid arrangements in Scotland, which will be required to ensure that people who are detained by immigration officers in Scotland will be able to access legal advice on the same terms as those detained by police officers. Those proposed changes alter the powers of the Scottish ministers’ executive competence, so the Parliament’s consent is again required.

The Subordinate Legislation Committee’s report indicated that the LCM does not explicitly cover two order-making powers in schedule 5 to the bill. Those provisions were covered in general terms in the section of the LCM that covers clause 10 and schedule 5. However, the Scottish Government has reconsidered the LCM in light of the SLC’s comment and accepts that the presentation and explanation of the referenced provisions could have been clearer.

The Scottish Government believes that the creation of the NCA will prove to be a beneficial tool in the fight against organised crime. The new offence of driving while under the influence of drugs will contribute to safety on Scotland’s roads. Although the Scottish Parliament would be able to legislate for the devolved matters that are contained in the bill, there is no suitable opportunity for it to do so in the near future. We believe that it is sensible that the provisions in the bill, in so far as they relate to devolved competences, should be considered by the UK Parliament at this time. I therefore ask the committee to support the draft legislative consent motion that is laid before it.

We have questions from John Finnie, Jenny Marra, Graeme Pearson, Humza Yousaf and Colin Keir.

With regard to the powers of detention, we are told that when carrying out their specific work, immigration officers call on the Scottish police service for assistance to detain about 100 people a year. Also, we received a submission from the Association of Chief Police Officers in Scotland, which states that

“robust local multi-agency coordination will be required to minimise the potential for conflicts of interest between multi-agency”

developments. The UKBA has a chequered history with regard to the welfare of children in Scotland. With the extension of the powers, what assurances can be given that we will not have repetition of the insensitivity associated with detentions where children are present?

As the member knows, we have no direct control over how UKBA officers carry out their duties within their competence. Their detention powers are given to them by the Westminster Government and will be exercised by them in that regard.

It is no secret that we would perhaps choose to do things rather differently from what is currently done. All we are in a position to do in Scotland is ensure that any of our law agents or police who might be involved have due regard to what we consider to be an appropriate way forward. As I have said, the UKBA operates directly under a UK Parliament remit rather than a Scottish Parliament one.

But this Parliament has obligations to Scotland’s children. If we cannot get anything in the bill itself, can we ensure that we provide the UKBA with robust guidance on dealing with children?

At all times throughout the process, our officials will have been very keen to ensure that what happens in Scotland is in accordance with what we regard as a proper way of proceeding. Our difficulty is that we do not directly control UKBA officers.

As the minister has said, issues of the kind that Mr Finnie has highlighted have emerged in the past. Mr MacAskill now has a much better relationship with the UKBA, primarily in relation to the situation at the port of Stranraer, on which there is now good dialogue between the UKBA and Scottish ministers. Scottish Government ministers also have a very good relationship and regular dialogue with the UKBA’s Scottish section, which is based in Govan, and the Association of Chief Police Officers in Scotland, too, has those links. The fact that we have a much closer working relationship than we might have had in the past should reassure members that we have a very good foundation to take this forward in a manner that is acceptable to the Scottish Parliament.

I do not doubt that every effort is being made to have good relations, but can we get some assurance that there will be no more dawn raids, for example?

I am sorry, but I do not think that I can give you that assurance. It is within neither my power nor the cabinet secretary’s power to stop UKBA officers behaving in the way in which they consider themselves to be enabled to do under legislation passed elsewhere.

I think that the minister has made it clear that she is not in operational control of the UKBA.

What preparations are being made between the UK Government and the Scottish Crime and Drug Enforcement Agency on the establishment of the national crime agency?

As I indicated in my opening remarks, my officials have been working very closely with officials south of the border on this matter. The NCA will, in effect, replace the current Serious Organised Crime Agency. All the protections and arrangements in place under the pre-existing regime will be replicated in the NCA, whose powers will be exercised in Scotland in accordance with Scots law. We do not think that there will be any difference between how things operate now and how they will operate in future. I am not sure whether the member is concerned about a specific issue, but we are satisfied that the proposed structures will effectively replicate what went on before. It will mean, for example, that officers will be embedded in Scotland and will have to become well accustomed to the different ways of working here.

How will complaints procedures operate in relation to the work of the new NCA officers in Scotland? Who will oversee that work?

I am advised that such complaints will be dealt with in the same way that other police complaints are dealt with. We are setting up a new police complaints body—

So they will go through the police investigations and review commissioner.

Yes, and the new body will also cover any NCA officers working in Scotland.

The memorandum mentions many of the actors involved, such as the Crown Office, but it does not say anything directly about the PIRC to make it aware that it will have oversight of that matter.

Our legislation is picking that up rather than Westminster’s. That is probably all that is happening.

10:15

It is indicated that the role of director general of the new national crime agency is such that that person will be responsible for securing improvements in co-operation between people and in the co-ordination of activities. Will that extend to Scotland?

The duty to co-operate will apply to the whole of the UK, including Scotland, but I understand that the director general will not have a direct role in instructing officers in Scotland, who will still be part of the working in Scotland. There will not be a separate line of instruction from the new director general.

In England and Wales, the director general will have the authority to task individual chief constables and to tell them what to do in tackling organised crime. That power will not extend to Scotland, where the operational independence of chief constables will be maintained. They will have the right to decide what to do with their officers and how to deploy them, although, as the minister pointed out, there will be a duty to co-operate. As you will have experienced in the past, there will be joint working between the NCA and the Scottish law enforcement agencies.

I notice that reference is made to a framework document. I presume that the maintenance of operational independence in Scotland will be set out in that framework document for the single chief officer who will be in place in Scotland by the time that the NCA comes in.

Yes. It is in the bill that the DG of the NCA has no powers to task in Scotland. That is clearly set out in the proposed legislation. Scottish ministers will have a role in agreeing the content of the framework document to ensure that it adequately reflects the priorities that Scotland wants to set in this area.

I am obliged.

I would like to follow up on John Finnie’s questions. In the previous session of Parliament, the Cabinet Secretary for Justice was fairly critical of some of the operations of the UKBA, in particular. I remember having a meeting with a number of restaurant owners who were quite unhappy with the way in which the UKBA was conducting raids on their premises. Local officers were meant to be seconded, but they complained that they were being ridden roughshod over.

From your discussions, has there been an improvement in the relationship between local police services and forces and the UKBA? That takes us on to the concern of Assistant Chief Constable Ruaraidh Nicolson, who has asked for local, multi-agency co-ordination. Are you satisfied that, should the UKBA be granted more powers, that will not be at the expense of local services here?

I cannot give any guarantees about the UKBA’s powers and the extent of them. I ask committee members to remember that we are not yet in the position of being able to instruct immigration and border control officers.

That is why I want members to be cautious about asking such questions. The minister is here to answer questions on matters that fall within her competence.

I understand that point but, if we give more power to an organisation—although we are not comfortable with a practice of it—by passing the LCM, we will, arguably, give it more legitimacy. I think that we must be comfortable with the nature of the relationship if we are to do that.

Bear with me, minister—I would like to correct the member, if I may. The LCM relates to devolved matters, which we are giving our consent for Westminster to deal with—it is not the other way round, which is the route that Humza Yousaf is taking.

The relationship is better than it has been, but I could hardly say that it is perfect, because it probably is not. We continue to work on that, to ensure that relationships on the ground improve. They are improving.

My question relates to the new powers that are to be given to immigration officers, which are set out on page 13 of the memorandum. A number of things will happen. What is the present situation? How is it being changed?

Do you mean what is different now as opposed to—

What is the state of play now, and what differences will the proposals make in relation to immigration officers? The legislative consent memorandum sets out some new powers.

The powers are to do with aligning customs and immigration officers. They are more to do with the Westminster end and the reserved things. The powers of the UKBA immigration officers and the powers of the customs officers are being brought together. The UK Government is trying to create a single officer, if you see what I mean, who will be able to do all those things. It is about what is going on within the UKBA rather than anywhere else.

The legislative consent memorandum mentions powers

“to detain suspects and obtain common law search warrants”.

Yes, but that is in connection with immigration and customs cases. Officers will not be able to exercise those powers outwith the confines of the immigration and customs aspects of offences. They will not be able to do the investigations, covert surveillance or other work on criminal activities that happens elsewhere. They will be entirely confined to the reserved matters that they are there to work on.

No one else is looking to ask a question. Whoops—whenever I say that, I know that someone else will have a question. Sorry, Rod.

I have a question on record keeping. Currently, immigration officers arrange for police officers to detain about 100 people a year in Scotland. If we give the UKBA the power to detain people and obtain common-law search warrants, what information will we get about the numbers of people who are detained? Has there been any discussion about that? How will we be able to identify what is happening in Scotland?

We will inquire as to how that will work in practice and get back to the committee.

Fine.

Good morning, minister. Do you have any comments on the drug driving offence? Although there is provision for the limits to be set in Scotland, I understand from the submission from ACPOS that there is no device to test drug levels.

There are some significant issues in relation to the drug driving offence, and they are recognised at the UK level, which is why the expert panel has been proposed. We will ensure that we work with it and look carefully at what it comes out with. It is generally recognised that there are some significant concerns about how to test in these circumstances. There is not a single, easy test, as there is with alcohol.

Members must remember that another offence already exists, which is driving while impaired by drugs. The new offence is about controlled drugs, but the other offence would still apply if someone who was not supposed to drive while on medication was doing so. We will still have that other offence of driving while impaired.

The difficulty is that we do not have a way to disaggregate the statistics for driving under the influence of drink or drugs, so I am not in a position to be able to give you the numbers. We want to look at that to see whether we can start to disaggregate the statistics.

There are a number of technical issues of that type and both Governments recognise that they might create some initial problems, so the expert panel will be in place to look at all the issues. The new offence will not be brought in until some of the answers are available.

I take on board what the minister said about considering the findings of the expert panel. Although it is a useful tool to be able to establish that someone is under the influence of drugs, it is a fairly blunt tool at present, and ACPOS says that it is subjective. More than just looking at the details, it is fundamental that, if we set the limits, we have a device to measure the levels. Is the Scottish Government moving forward independently and doing research to establish whether a device is in the making that will enable us to do that?

I think that that is one of the things that the expert panel that was announced in January will look at. It comprises academic and scientific experts and it will look at all the technical aspects, such as how it would be possible to set limits for the impairing effects, because we do not have that information at the moment. Both Governments are still some way from being able to implement this new offence. I am informed that the date for that is November, but whether we will be in a better position technically then is another matter.

I am not sure that there would be anything to be gained by making our own efforts towards getting a single test. If a single test was available from any other country, we would probably want to adopt it immediately. However, we will be involved in the panel that will consider the issues, so we are already involved in the details of the technicalities in that regard.

I take it that cognisance will be taken of any new policing arrangements when considering this provision.

In what context?

Perhaps any reference to policing in the LCM and in the UK bill will take cognisance of the new arrangements that will be in place following the Police and Fire Reform (Scotland) Bill.

Yes. The Crime and Courts Bill is drafted on the basis of having a single police force, so that has already been taken on board.

Is the Scottish Government considering implementing in tandem, perhaps on the same day, its proposal for a new drink driving limit and the proposal for a drug driving limit in order to aid public understanding? Have any preparations been made in that regard?

I am not aware of what the proposed timetable is for the new drink driving limit. I do not think that it has been decided yet, so I cannot say whether it will have the same timetable as that for the drug driving limit. However, we can get back to you on that.

I have a kind of off-piste question. What is the point of having the power that we are discussing when drug driving cannot be tested? I am not blaming the minister for that, because I am sure that the UK Government is in a similar position.

We could turn that round the other way. The moment we have a good test, the power will be immediately implementable, which is better than having to wait for a test before going through the legislative process to implement it. I presume that that is the thinking behind what is happening.

We undertook research in the drugs policy unit that found that, although it does not have a sophisticated testing technique for all drugs, Victoria in Australia has a saliva test that indicates whether a drug is present in the body. If the test indicates that, an individual will be taken back to the police station, where more thorough tests will be done to determine what controlled substance they have taken. There is a binary test, if you like, that indicates that a drug has been taken and that the person is therefore impaired.

So there are tests that someone could fail in that regard. It seemed from what was said earlier that there were no such tests.

There is no sophisticated test that would determine at the roadside whether a person had taken heroin or amphetamines, for example. However, the test would show that a drug had been taken, whether it be prescribed or—

Yes, but the issue is setting limits. You can take certain drugs but not be impaired. That is what I am getting at. Will the same principle apply as does for drink driving?

That is why I made the distinction between this offence, which is about controlled drugs, and the offence of driving while impaired by drugs, which already exists. After all, people can take prescribed drugs that can impair their driving, so we must make that distinction. If prescribed drugs impair your driving, you are not supposed to drive and it constitutes an offence if you do. However the power that we are discussing is specifically about controlled drugs. In effect, it is an additional offence.

I will let Margaret Mitchell follow up on that, and then we will leave this issue, because I feel that we will not get any further with it.

I feel that we have muddied the waters, so I just want to clarify the situation. Does the test, which is not available, test the amount of a drug?

No test can tell immediately what drug has been taken or the amount that has been taken. The only test is for whether there is a drug in your system. The task for the technical committee is to come up with a detection method and the associated costs.

So the provisions are a wish list for when a device is developed.

Also, if we are going to charge someone, it is important to establish that we are going to charge them with the correct offence. If someone is charged with driving when they were taking controlled drugs, but they were actually on prescription medication, it might be that they should still not have been driving, but the offences will be distinct. We would therefore need to find a way of distinguishing between the two. I presume that the saliva test does not do that.

No.

It simply establishes that the person has taken something. Thereafter, a more definitive description of what the person has taken can be given and we can see whether they had a prescription for it.

I am going to move on from this before I need to take a prescribed drug called codeine. We are swimming around in circles. We will have to wait to see what the expert panel has to say, as will the minister.

Minister, I thank you and your officials for your attendance. We will have a very brief suspension—members, stay in your seats—while the officials change over.

10:31 Meeting suspended.

10:32 On resuming—