Subordinate Legislation Committee, 23 Jan 2001

Meeting date: Tuesday, January 23, 2001

Official Report 120KB pdf

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Sexual Offences (Amendment) Act 2000 (Commencement No 2) (Scotland) Order 2000 (SSI 2000/452)

The order has come back to us yet again.

Last week, I said that the Executive response was not exactly encouraging. It has responded again and, in fairness, I think that the latest response is much better. It goes a long way to persuading me that section 7(2) of the Sexual Offences (Amendment) Act 2000 does not require commencement proceedings. My attention was particularly drawn to the argument that it is simply part of the incidental part of the act, and concerns how the act is commenced, unlike the substantive part of the act, which concerns the regulation of sexual offences. I am inclined to think that the Executive's response might be correct.

Having said that, like other legal minds who have thought about the matter, I would not put my mortgage on that. I am still puzzled about why the Executive would want to take any risk on the matter. I appreciate that it may be to do with the Home Office not being prepared to do a commencement order. However, I would have thought that, even if it is not strictly necessary, it could do no harm to bring in section 7(2) by a commencement order. I am puzzled as to why, if there is a doubt, that is not done.

I am fairly confident that a legal argument could be made against the Executive on this point. I do not mean that it would necessarily succeed, but a statable argument could be made in the courts against the Executive. Why the Executive should take that kind of risk at all is slightly puzzling. It seems to be saying, "We are saying we're right, and so be it." That is up to the Executive, but I would be inclined to ask why it does not ask the Home Office to commence the section, as is suggested, so avoiding any risk. Why should the Executive take a chance on a serious criminal statute? Because it is a criminal statute, it will be construed strictly. The Executive's attitude seems a bit cavalier to me.

I am with Gordon Jackson on that point. Can we ask the Executive for good reasons why it is not writing to the Home Office to ask that a commencement order be laid?

I think that it may now be too late to ask the Executive. The matter is not going to a lead committee, so it is simply a matter of our drawing it to the Parliament's attention. We should simply state our concerns for the record and for whoever else may care to take cognisance of them.

I am advised that there is indeed time to write to the Executive again pointing out our deep concern.

The legal adviser said that she had taken advice on the matter. I reiterate that it seems entirely reasonable for us to ask the Executive why it does not ask the Home Office to lay a commencement order.

As we have time to do so, shall we write to the Executive saying that, although we see merit in its argument, we can also see merit in the counter argument, and that, in view of the serious nature of the problems that could arise, we feel that ministers should consider implementing the provision with a commencement order? We should also point out that doubt has been expressed by the speaker's counsel at Westminster and the counsel general in Wales. That would give the Executive a further opportunity to say that there is a way out. It is no skin off the Executive's nose; all it has to do is write a letter to the Home Office and get things done down in London. Is that agreed?

Members indicated agreement.