Official Report 384KB pdf
The committee is invited to consider the powers to make subordinate legislation that are conferred on the Scottish ministers by the bill, which is UK Parliament legislation. The committee may then report to the lead committee on the provisions. The briefing paper that has been provided sets out the relevant aspects of the bill and comments on their effect.
An amendment to the bill that was tabled on 8 January proposes a new clause 11. That clause would enable the Scottish ministers by regulations to confer on sheriff courts a power to make a telecommunications restriction order, which requires a communications provider to take the action that is specified in the order for the purpose of preventing or restricting the use of communication devices by persons who are detained in prisons or young offenders institutions.
It is suggested that the committee may wish to find the power that is proposed in the new clause 11 acceptable in principle and to be content that the power is subject to the affirmative procedure. However, the committee may wish to draw the terms of the proposed power to the attention of the lead committee as, first, it enables the Scottish ministers to create offences for breach of telecommunications restriction orders without specifying the maximum penalty that may be imposed for any offences created and, secondly, there is an apparent discrepancy between the scope of the power and the stated policy intention in the supplementary legislative consent memorandum.
Does the committee agree to report to the lead committee accordingly?
Colleagues may recall that the Tribunals (Scotland) Bill introduced a similar provision that did not provide for a limit on the penalty that could be imposed. The committee indicated that it was uncomfortable that secondary legislation should have that effect. Similarly, we should invite the Government to consider whether it should provide a much more substantial explanation of what it plans and/or a provision to make sure that there is a limit on the penalty that can be imposed, however large that limit might be, rather than it being an unlimited penalty.
I agree absolutely with Stewart Stevenson. I suppose that the fact that no maximum penalty is specified might reflect the possible content of a call and the potential significance of calls that are made from prison. That is perhaps why no limit on the penalty is specified. However, I agree with Stewart Stevenson that we need an explanation; there might be a reasonable explanation.
Indeed.
On that basis, does the committee agree to report to the lead committee in the terms that I suggested?
Members indicated agreement.