Justice 1 Committee, 22 Dec 2004

Meeting date: Wednesday, December 22, 2004

Official Report 285KB pdf

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Subordinate Legislation

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Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 (draft)

I welcome everyone to the 40th meeting in 2004 of the Justice 1 Committee. As usual, I remind members to switch off their mobile phones. We have received no apologies and there is a full attendance this morning. I welcome the committee's adviser on the Protection of Children and Prevention of Sexual Offences (Scotland) Bill, Professor Chris Gane, who is sitting to my right.

Item 1 is subordinate legislation and I begin by welcoming, once again, Hugh Henry, the Deputy Minister for Justice, who will be taking part in the proceedings. I refer members to the paper on the draft Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005. I invite the deputy minister to move and speak to motion S2M-2170.

Sections 26(1) and 26(2) of the Criminal Procedure (Amendment) Scotland Act 2004 give Scottish ministers an order-making power to make incidental, supplemental and consequential provisions for the purposes of, or in consequence of, that act. That includes power to modify any enactment, including the 2004 act itself. The instrument exercises that power in order to make minor technical amendments to the 2004 act and to the Criminal Procedure (Scotland) Act 1995, largely to provide clarification as to the effect of the provisions of the 2004 act.

Article 3(2) of the order inserts a reference to the accused having been cited to appear at a trial diet in the sheriff court into new section 81 of the 1995 act, as inserted by section 9 of the 2004 act, which relates to the procedure where a trial diet does not proceed. That is to clarify the effect of that section in relation to solemn proceedings in the sheriff court and is necessary because the current reference to the trial diet having been appointed is not appropriate in relation to proceedings in the sheriff court, where the accused is cited to a trial diet.

Article 3(3) amends section 92(2F) of the 1995 act, as inserted by section 10 of the 2004 act. Section 92(2F) provides for the exceptions to the requirement on the court to appoint a solicitor to act for an accused where the trial proceeds in his absence. A reference to section 288F was omitted from section 92(2F), and article 3(3) corrects that. That ensures that the court is not obliged to appoint a solicitor to act for the accused under section 92 where an order has been made under section 288F. That is necessary because, where section 288F applies, the court will already have appointed a solicitor to act for the accused under section 288D.

Section 25(2A) of the 1995 act, which was inserted by section 18(2) of the 2004 act, provides that the intimation of an application by the accused to change the address specified in a bail order must be made to the Crown Agent. Article 3(4) clarifies that as a matter of practice that requirement will be satisfied if intimation of the application is sent to the local procurator fiscal.

Article 3(5) corrects a reference in paragraph 50(b) of the schedule to the 2004 act to "the relevant time", which should have been to "the required time".

Article 4(2) corrects a consequential error in the numbering in the 1995 act, which was the result of the insertion of new sections 24A to 24E into the 1995 act by section 17 of the 2004 act. The Extradition Act 2003 had inserted a section 24A into the 1995 act while the Criminal Procedure Amendment (Scotland) Bill was passing through its parliamentary stages. Article 4(2) renumbers the section that the 2003 act inserted as section 24F.

Preliminary hearings in the High Court, which were introduced by section 1 of the 2004 act, are intended to dispose of all preliminary matters that can be dealt with before the trial diet. In particular, section 72(6)(b)(ii) of the 1995 act, which was inserted by the 2004 act, provides that

"any child witness notice … or vulnerable witness application … appointed to be disposed of at the preliminary hearing"

should be disposed of unless the court considers it inappropriate that that should be done. For the avoidance of doubt, article 4(3) inserts new section 71(2XA) into the 1995 act, to ensure that it is clear that the sheriff at the first diet in the sheriff court must also deal with any such notice or application appointed to be disposed of at that diet.

I move,

That the Justice 1 Committee recommends that the draft Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 be approved.

I want to examine the sequence of events that caused the problem with the numbering of section 24A of the 1995 act. Was the Extradition Bill going through the parliamentary process at Westminster at the same time as the Scottish Parliament was considering the changes to the 1995 act that led to the insertion of sections 24A to 24E?

I had thought that no issues would be raised about the draft order, but I was forgetting that Stewart Stevenson would be here.

I am advised that the Extradition Act 2003 came into force in January 2004. The Extradition Bill was going through its later stages when consideration of the Criminal Procedure Amendment (Scotland) Bill began in the Scottish Parliament.

I suspected that. What arrangements have been put in place to protect the integrity of legislation when Westminster and the Scottish Parliament are simultaneously legislating to amend the same act of Parliament?

We try to ensure that there is close co-operation between officials in both legislatures. We also try to ensure that matters that are relevant to the Scottish Parliament are brought to the attention of committees when they are deliberating on proposed legislation. It is clearly in our interests to ensure that legislative proposals in the Scottish Parliament reflect relevant considerations at Westminster and we ensure that Westminster is aware of what we are doing.

If tidying up needs to be done because a matter has been overlooked, as in the case that we are discussing, we can do that speedily and effectively. The committee will be aware that we make a commitment that if a policy issue arises in relation to a Sewel motion after a committee of the Scottish Parliament has considered the matter, we will bring the matter back to the committee and to the Parliament for further consideration. The matter that we are discussing today is a technical, tidying-up issue. Very good co-operation takes place between officials and we try to ensure that such issues do not arise, but sometimes that cannot be done.

I accept all that, minister, and I am glad, in a sense, that you have the power to amend the acts by order. That is not a power of which my parliamentary colleagues and I are generally in favour but, in this instance, it is clearly to the advantage of proper administration and legislation that you happen to have the power. Is there a case for updating the concordats between the Scottish Executive and the London Government to ensure that such a technical problem—that is all that it is—does not occur in future? I am slightly concerned that we might find ourselves in a position in which you do not have the powers to effect the necessary change as conveniently as in this case and I want to be able to continue to argue that ministers should not have the blanket right to change acts by secondary legislation, because I continue to have grave concerns about that.

I accept the argument that you make and the concerns that exist. As you know, the amendment of an act by secondary legislation is not something that we would do lightly. The amendments are, as you acknowledged, technical matters and therefore it is advantageous to amend the acts by order.

I am not sure that any problems that have been encountered have been such that they would require any change to the concordats. If we felt that the procedures were not working adequately, properly or to the Scottish Parliament's advantage, we would reflect on the matter. However, the arrangements work reasonably well. That is not to say that they would work perfectly on all occasions, but we have sufficient flexibility and I know that our Westminster colleagues will try to accommodate the requests that we make and to be aware of anything that we are doing. We will reflect on the point that you make, but I am not persuaded that the situation requires any fundamental change to concordats that seem to work well at the moment.

I can see nothing controversial in the order. Section 25(2A) of the 1995 act, which was inserted by section 18(2) of the 2004 act, says that if an accused changes their bail address, that must be intimated to the Crown Agent, and article 3(4) of the order clarifies that, as a matter of practice, intimation to a procurator fiscal counts as intimation to the Crown Agent. Would that not normally be accepted in any case? The procurator fiscal acts on behalf of, and has a commission from, the Lord Advocate. Why did you think it necessary to specify that?

You are right that we would expect that to be case, but we want to make absolutely clear what the procedure should be, and we think it right that that be reflected in the legislation. It is for the avoidance of doubt.

I do not take issue with that, but I make the point that, if procurators fiscal have a commission from the Lord Advocate, there should never be any doubt that they act on the Crown Agent's behalf in everything that they do. If we clarify that in the 2004 act, do we have to do it in every act if there is any doubt over it?

The advice that I have is that, on some occasions, there could be some doubt as to who the proper designated person would be. We would rather that there was no doubt and that the roles of the Crown Office, the Crown Agent and procurators fiscal were clearly specified so that no one could misunderstand.

I have a practical question. I see the order as a tidying-up exercise. When someone goes to look at the 2004 act after the order is passed, will they have to seek out the supplementary legislation to ensure that they have all the law, or will the 2004 act, which has just been published, have to be published in its amended form? My only concern about these tidying-up exercises is that I want the law to be easy for people to find. The act has only just been published, and I want to ensure that people are aware that changes, albeit minor and technical, have been made to it recently.

The amendments, although minor, will be to the 1995 act, and anyone who seeks to consult the legislation will have to go back to the 1995 act, as amended. That would have to be done in any case. I am sure that solicitors acting in this area will have updated copies of the relevant legislation.

Do you think that there is a case for consolidating the legislation at some point in the future?

I am sure that there is a case to be made for that. However, where that sits in our priorities over the next few years is another matter. I am sure that we will always consider carefully any representations that a committee or the Parliament makes about the prioritisation of legislation, and you are right to say that consolidation would help. However, as you know, we have other matters to attend to first.

If we got a lot of orders amending the 1995 act, albeit uncontroversial, there might be a case for consolidation. I just want to ensure that, once an act is passed, it is fairly easy for users to track what changes are made to it.

It is right that the Parliament has placed such emphasis on making justice more easily accessible to everyone. For too long, we had a system that was not easily understandable and that was over-complicated. Nevertheless, the difficulty in drafting legislation—as you know—is that it is hard not to simplify without introducing technicalities and complexities. It is our aspiration to ensure that all those who use the system have easier access to it and that it is easier to understand. All the different sections of the system have been changing over recent years, and we have seen a remarkable change. We might one day get to the stage at which we pass a bill that is so simple that it will never need amendment and that is easy for everyone to understand, but I do not think that I will be here when that happens.

Nor will we. Thank you. The committee has no further comments.

The question is, that motion S2M-2170 be agreed to.

Motion agreed to.

That the Justice 1 Committee recommends that the draft Criminal Procedure (Amendment) (Scotland) Act 2004 (Incidental, Supplemental and Consequential Provisions) Order 2005 be approved.

As usual, the committee is required to report to Parliament on the order. Our report need not be any more than what is in the Official Report. Is that agreed?

Members indicated agreement.

That report will be circulated for comment at the end of the recess and must be published by Monday 10 January. I thank the minister and his officials for their attendance this morning.

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Act of Sederunt (Fees of Sheriff Officers) 2004 (SSI 2004/513)

On the second item of subordinate legislation, I refer members to a note that has been prepared by the clerk. This is a negative instrument, and I invite comments from members.

I have given the clerk a note of the issues that I have with the instrument. I do not propose to move that nothing further be done on the instrument at this stage, and I suspect that I am unlikely to do so within the prescribed period. Nevertheless, there are several questions that the clerk's paper simply does not answer. First, does the 3.7 per cent increase in fees include the change that allows sheriff officers to be paid for postage in addition to the prescribed fees? If it does not, the increase will be greater than 3.7 per cent.

Secondly, how has the figure of 3.7 per cent been arrived at? The previous instrument, which was dealt with 12 months ago in December 2003, raised the level by 3.2 per cent. I do not know where the new figure has come from. Is it the same as the figure for average wage inflation over the same period? If so, why has the increase not been based on the average inflation in the cost of living? After all, those figures are different. No justification has been given for that.

Thirdly, I simply do not understand how the various figures relate to the costs of the provision of services by sheriff officers. Indeed, I cannot see any relationship between the actual fees and the different headings setting out the work that is involved.

My final point is relatively minor. Some recent legislation—for example, with regard to planning—has provided for the sending of legal notices by e-mail. However, I am not sure whether any notices can legally be provided by sheriff officers by e-mail. If they can, there does not appear to be any provision for fees in that respect. As a result, I propose that it is reasonable for the committee to write to the Minister for Justice and seek answers to those questions before allowing a committee member to decide whether to move that nothing further be done under the instrument.

Thank you for giving us notice of the issues that you wished to raise.

At this stage, all the committee can do is to write and ask for clarification on the points that Stewart Stevenson has raised. I believe that we would write to the minister on the subject of sheriff officers' fees.

So we would write to the minister rather than to the Lord President.

Yes.

Okay.

Given that the changes are to be enacted on 1 January, what would be the effect of this delay?

It would have no effect.

As this is a negative instrument, it has already been laid and simply lies there for a number of days. There is still time for someone to lodge a motion to annul, but Stewart Stevenson has said that he wants to wait for answers to his questions before he makes any such decision. The provisions will come into force on the date of enactment, unless Parliament annuls them. All we would do is to recommend that Parliament should annul the instrument, but that can happen only if a member moves a motion to do so. No member is moving such a motion this morning, but it would not be out of order for the committee to consider any such motion within the timeframe.

We have until 20 January. I have to say that I would not be minded to support a motion to annul the instrument unless we received something earth shattering from the minister. That said, I have no problem with asking the Executive why it has arrived at a figure of 3.7 per cent—in any case, fees should be updated to reflect any changes in technology—but I do not know whether there is a legal answer to the question whether such an increase is allowed in the first place.

It is unlikely that I will lodge a motion to annul. However, I want to ensure that ministers argue the case for introducing provisions that will require the public to bear additional costs. I do not believe that the clerk's paper presents that argued case. That is the real issue for me. I am not trying to deny sheriff officers, who in effect work as private companies, the proper reward for their work.

In the spirit of what Stewart Stevenson said, I see no problem in writing for more information, unless anyone dissents. When we receive a reply from the minister we can decide which aspects should be included in a report. The reply will not constitute the whole report, but there may be elements within it that Parliament should be aware of when it agrees the instrument. Is that agreed?

Members indicated agreement.