Public Appointments and Public Bodies etc (Scotland) Act 2003 (Amendment of Specified Authorities) Order 2011 (Draft)
Criminal Justice and Licensing (Scotland) Act 2010 (Consequential and Supplementary Provisions) Order 2011 (Draft)
Advice and Assistance (Assistance By Way of Representation) (Scotland) Amendment Regulations 2011 (Draft)
Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2011 (Draft)
There are four draft affirmative instruments for the committee’s consideration today. This item is an opportunity for us to take evidence from the Cabinet Secretary for Justice and his officials on the instruments before we formally consider motions to approve them under the next item. The Subordinate Legislation Committee has not drawn any of the instruments to the attention of the Parliament or the committee.
Thank you, convener.
Thank you. Are there any questions for the cabinet secretary?
Have any appointments been made using the facility of the 2003 act since it was passed?
All appointments are made by OCPAS. The Lord Commissioner of Justiciary has a unique role, so everybody before has gone through OCPAS—no, that is not right. I invite Patricia Scotland to comment.
Since the Prisoners and Criminal Proceedings (Scotland) Act 1993 was passed, there have been a number of senators appointed. Since the Public Appointments and Public Bodies etc (Scotland) Act 2003 was passed, two senators have been appointed by the Lord President, not under OCPAS procedures.
Under the order, the Lord President will appoint them, but there will be similar rules to those of OCPAS.
No. We would expect the Lord President to nominate one of the 34 senators to the position. That has happened twice in the past.
The “Policy Objectives” section in the Executive note on the order says that any such appointment will require to comply with the OCPAS rules.
Yes. We are working on the basis that nobody would be a senator of the College of Justice unless they fulfilled many of the broader criteria in the OCPAS rules. It is clear that the appointment by the Lord President will not necessarily be made using the same strict OCPAS criteria; rather, it will be made on the basis of who has the experience for the Parole Board, who has the heaviest workload and so on. Members can be assured that whoever the Lord President seeks to appoint would have got through the initial sift from OCPAS, if I may put things in that way, but the criteria that the Lord President will use will probably be more suited to the individual, the role and the running of the High Court.
We would be quite concerned if it were otherwise.
I welcome this opportunity to contribute to the committee’s consideration of the draft order, and I hope that these explanatory comments are of assistance. Section 14 of the Criminal Justice and Licensing (Scotland) Act 2010 inserted new sections 227A to 227N, among others, into the Criminal Procedure (Scotland) Act 1995 to establish the community payback order. From 1 February 2011, community payback orders will replace probation orders, community service orders and supervised attendance orders. The draft order makes provisions for consequential and supplementary amendments that are required.
There are no questions on the draft order, as the matter is fairly straightforward.
The third instrument is the draft Advice and Assistance (Assistance By Way of Representation) (Scotland) Amendment Regulations 2011. The cover note for the regulations is paper 3.
The draft 2011 regulations amend the Advice and Assistance (Assistance By Way of Representation) (Scotland) Regulations 2003, to allow state-funded legal representation to be made available for proceedings in relation to community payback orders, which are established under new sections 227A to 227N of the Criminal Procedure (Scotland) Act 1995, which are inserted by section 14 of the Criminal Justice and Licensing (Scotland) Act 2010. The new community payback order replaces probation orders, supervised attendance orders and community service orders. State-funded legal assistance is currently available for proceedings in connection with those three orders, and the draft regulations will enable state-funded legal representation to continue to be available following the introduction of community payback orders.
Do the draft regulations have any financial implications? Obviously, there will be more orders, partly because of the presumption against short-term sentences. Is there a significant financial impact?
I do not think so. Obviously, we factored in that there will be an increase as we move towards community payback orders, but that will happen over a period of time as they replace existing orders. The financial implications for the Scottish Legal Aid Board will not be considered specifically with regard to this Scottish statutory instrument but with regard to our general direction of travel, which is subject to on-going discussions between the Scottish Legal Aid Board and the Law Society of Scotland.
The financial memorandum to the Criminal Justice and Licensing (Scotland) Bill estimated the potential increase in the number of community payback orders at between 10 and 20 per cent. What might the increase be for 2011-12?
We stand by the figures in the memorandum—those are the predictions and we will see what happens on 1 April. Thereafter, the formulation will come after discussions with other relevant stakeholders, including the judiciary.
The fourth instrument is the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (Scotland) Order 2011. The cover note for the order is paper 4.
I welcome the opportunity to contribute on the draft order. The Crime (International Co-operation) Act 2003 provides statutory powers under which the United Kingdom can both seek and provide various forms of mutual legal assistance concerning criminal matters. However, some of the statutory powers can be exercised only if the state in question is a participating country as defined in section 51(2) of the 2003 act. As a consequence of the agreement between the European Union and Japan that was concluded on 7 October 2010, this order designates Japan as a participating country in relation to certain sections of the 2003 act. Japan has been designated in relation to sections 37, 40, 43, 44 and 45 of the 2003 act. Those sections permit the provision of banking information for criminal investigations into conduct such as economic crime and money laundering. The Home Office laid a draft order making a similar designation in relation to provisions that apply in England and Wales before the Westminster Parliament on 1 December 2010, and this order seeks to deal with matters here in Scotland.
There being no questions from members, we move to formal consideration of the motions to approve the four instruments. Do members agree to take the motions on the four instruments together?