European Protection Order (Scotland) Regulations 2015 [Draft]
Good morning and welcome to the Justice Committee’s sixth meeting of 2015. I ask everyone to switch off mobile phones and other electronic devices, because they interfere with broadcasting even when they are switched to silent.
Alison McInnes has submitted her apologies.
Agenda item 1 is consideration of an instrument that is subject to affirmative procedure: the draft European Protection Order (Scotland) Regulations 2015. I welcome to the meeting Paul Wheelhouse, who is the Minister for Community Safety and Legal Affairs; and from the Scottish Government I welcome Neil Watt, who is the head of the European Union implementation team; Neil Robertson, who is EU policy manager; and Craig McGuffie, who is from the directorate of legal services.
The minister will give evidence in advance of the debate on the instrument. I invite him to make brief opening statement.
Thank you, convener, for allowing me to appear before you today. I know that you are very busy, so it is much appreciated.
You are currying favour. I love it. Keep it going.
The regulations will, in part, transpose into domestic law the terms of directive 2011/99/EU, which is part of a suite of measures that are designed to protect and support victims across the EU. As outlined in the policy note,
“The general objective of the Directive is to provide mutual recognition across the EU of criminal protection orders”,
for example, non-harassment orders. Practically, that means that protection measures that are issued in one EU country will have to be recognised across the entire EU. In that way, the protection will travel with the individual.
We have liaised closely with the United Kingdom Government throughout the development of our legislation in order to ensure a consistent approach, where possible. For example, in relation to incoming European protection orders—EPOs—Scottish courts will have the power to impose non-harassment orders and English courts will have the power to impose restraining orders, which are broadly equivalent.
Although the regulations will transpose most of the directive, there is also a requirement for court rules. We have therefore liaised closely with the Lord President’s office to discuss the likely requirements, and the Criminal Courts Rules Council is also considering the matter. Areas to be covered by court rules will include practical and administrative arrangements around the application process for an EPO, notifications and modifications of EPOs, and translation of forms. We expect an act of adjournal to be laid in Parliament shortly.
The regulations were laid initially in December 2014, when the question was asked whether the regulations as laid made adequate provision for the definition of “protective measure”. Obviously, that question could not be allowed to remain, so the regulations were withdrawn so that the matter could be resolved.
During reconsideration of the regulations a question arose as to the criminal penalty that could be applied using section 2(2) of the European Communities Act 1972. After due consideration, the regulations were, to ensure that they were within vires, amended to provide for a maximum penalty of two years’ imprisonment. The administrative and procedural aspects of the new EPO regime will fall, for the most part, to the Scottish Court Service, with which we therefore have worked closely to ensure that the relevant arrangements are in place prior to the new regime’s coming into force.
As the committee will appreciate, it is difficult to ascertain the likely volumes of incoming and outgoing EPOs, given that we are establishing a completely new process. However, we anticipate that the numbers will be low, and we do not foresee any significant financial implications of the regulations.
We will, however, continue to liaise closely with the Scottish Court Service and other key stakeholders to monitor the operation of EPOs once they are introduced, and to monitor any practical or financial impacts.
We have also written to victim support organisations, not only to advise them of the new regime, but to indicate that, as always, we will be open to comments about how the new system is working in practice in due course.
It goes without saying that the Scottish Government is fully committed to strengthening the rights and protections of victims. We believe that the regulations, along with the associated court rules, will enhance those rights and protections. Thank you.
Good morning, minister. I think that you covered my question with a comment that you just made. The section on consultation in the policy note that we have refers to the liaison on the technical side of things—on the court side. The equality impact assessment section says that
“the main impact ... is expected to be around domestic abuse.”
When you talk about victims’ groups, can you explicitly include Scottish Women’s Aid? The policy note says that there will continue to be consultation on how the system of EPOs operates in practice, but SWA is not specifically mentioned, and the organisations that are mentioned are all in-house groups. Can you confirm that SWA will be included in consultations?
I undertake that we will consult Scottish Women’s Aid to see whether it has any concerns about the system, and that we will keep it informed of the work as it unfolds. We will also make sure that, in gathering evaluation evidence, we consult Scottish Women’s Aid. I agree with Mr Finnie that it is a very important group that protects the interests of victims of domestic abuse.
I believe that there is also a civil order that parallels this one—not that there would not be criminal proceedings following domestic abuse. Is it on the same time frame?
I will double-check with colleagues, but I believe that it is.
The civil order is already in force, is it not? It came into force on 9 January, I think.
I am also interested in the equality impact assessment, because many crimes to which the EPO would apply would be crimes of domestic abuse. Anything that prevents perpetrators from being able to get away with their crimes by moving elsewhere is to be desired.
You think that there will be no “significant financial implications” for the Scottish Court Service. If it proves to be the case that there are, and given that we have heard already about financial pressures on the Scottish Court Service, will measures be put in place to compensate the court service?
That is something that we are aware of. As I said in my opening statement, it is difficult to predict exact volumes of EPOs. Perhaps I should ask Neil Robertson to come in to speak about European supervision orders, because we think that the volumes for EPOs will be similar to the volumes for those. We can come back to the committee with further detail to justify that position. The numbers for European supervision orders are very low; therefore, we do not anticipate a huge number of cases involving EPOs that would impact on the Scottish courts. We will keep the issue under review. If it turns out that the volume is higher than anticipated, we will speak to the Scottish Court Service. If there are specific resource issues, we can take them into account.
I invite Neil Robertson to discuss the European supervision order position.
The committee will recall that we spoke to it last year about the European supervision order. At the time, we anticipated that the number of those orders would be about seven to 10 a year. We think that there will be similar numbers of the European protection order, but that is very hard to predict at the outset, as with any new European measure. We gave an undertaking to monitor for any adverse financial impact of the ESO: we will do the same with the European protection order.
You referred to the delay due to drafting and clarifying the criminal penalty. Have there been, or are there likely to be, consequences of the measure’s being introduced and implemented only now?
We are conscious of the delay and the transposition deadline issue. We have not to date had any applications that have affected us, so we are hopeful that—given the timing of today’s committee meeting, and if Parliament agrees with the measure—we can get it implemented quickly. We do not have any immediate difficulties.
I understand that we could, in the meantime, take out a civil interdict, if something did emerge immediately and it was necessary to take steps. We can discuss that if required. However, we are confident that we can get the measure up and running quickly, if the committee agrees to the order.
If someone from another European country were to breach a protection order here, who would enforce the penalties, what would the penalties be and in which country would they be enforced?
If someone from another EU member state is in Scotland and breaches—
Yes, or vice versa. I presume that there would be criminal penalties following a protection order breach. Under which legislative procedure would that fall? Let us say that someone from Scotland breaches an order by following someone to Germany. Would Scottish law prevail there, because they had breached an order that had been issued in Scotland? I want to know how the process would work.
The key is that it is about us respecting an order that has been issued in another country. If someone who was in Spain, for example, had breached an order that had been set in Scotland, they would in effect be committing an offence in Spain; the fact that an order had been issued would be recognised.
I want to double check: Craig McGuffie will clarify the legal position.
If a European protection order that is made in Spain is passed to authorities in Scotland, they would impose a non-harassment order. A breach of that order in Scotland would be a crime in Scotland and would be punishable under the—
I understand that. I simply want to know where the jurisdiction would fall if there was a breach.
The position would be the same vice versa. If someone in Scotland has an EPO, that would transfer to Spain. It would be enforced in Spain through a Spanish restraining order and—
A breach in Spain would fall under Spanish law.
The Spanish court would have—
That is fine; that is clear. Thank you very much.
As no other members have any questions, we will move on to item 2, which is the formal debate on the motion to approve the instrument. I invite the minister to move the motion.
Motion moved,
That the Justice Committee recommends that the European Protection Order (Scotland) Regulations 2015 [draft] be approved.—[Paul Wheelhouse.]
Motion agreed to.
As members are aware, we are required to report on all affirmative instruments. Are members content to delegate responsibility to me to sign off the report?
Members indicated agreement.
I thank the minister and his officials.
09:57 Meeting suspended.Previous
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