Criminal Justice (Scotland) Bill: Stage 1
Under agenda item 6 we consider the delegated powers in the Criminal Justice (Scotland) Bill at stage 1.
The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill. It is suggested that those questions are raised in written correspondence. The responses that are received will help to inform a draft report on the bill, which the committee will consider at a later date.
Section 33(5)(a) of the bill defines the term “mental disorder” by reference to section 328(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003. Although the Scottish ministers will—under section 34(1)(a) of the bill—have the power to amend section 33(1)(c), there is no power to modify the definition of “mental disorder” in section 33(5)(a). “Mental disorder” is a defined term that appears only in section 33(1)(c). The committee may consider that it could become necessary to alter that definition in the future—for example, in the event that changes are made to the Mental Health (Care and Treatment) (Scotland) Act 2003 definition, by reference to which the term is defined in the bill.
Does the committee therefore agree to ask the Scottish Government whether it considers it necessary to take a power to amend the definition of the term “mental disorder” in section 33(5)(a) of the bill; and, if it does not, how it would propose to amend that definition in the future, should it become necessary to do so—for example, when it exercises the power to amend section 33(1)(c)?
Members indicated agreement.
Sections 83 and 84 of the bill provide, respectively, for the general aggravation of an offence by its having a connection with people trafficking activity and the aggravation of a specific people trafficking offence by the abuse of a public position. In both cases, the court must take the aggravation into account in determining the appropriate sentence and, in circumstances in which the sentence that is imposed is different from the one that would have been imposed had the offence not been aggravated, it must state the extent of, and the reasons for, that difference.
Subsections (1) to (3) of section 85 of the bill respectively define the terms “a people trafficking offence”, “a public official” and “an international organisation” for the purposes of sections 83 and 84. Section 85(4) grants power to the Scottish ministers to modify subsections (1) to (3) of section 85 by regulations. Section 85(5) provides that those regulations are to be subject to the negative procedure.
Does the committee agree to ask the Scottish Government why the power in section 85(4) of the bill is drawn in such wide terms? In particular, the committee may wish to seek an explanation of why the power does not include greater specification of the manner in which the provisions in primary legislation to which it refers may be modified.
Members indicated agreement.
Does the committee also agree to ask the Scottish Government whether it considers that the affirmative procedure may afford the Parliament a more appropriate level of scrutiny over the exercise of the power, considering that it enables the Scottish ministers to make textual amendments to primary legislation?
Members indicated agreement.
Section 86(1) of the bill inserts new sections 288H to 288K into the Criminal Procedure (Scotland) Act 1995. The new provisions allow the court to determine that a detained person is to participate in specified court hearings by use of a live television link. In making such a determination, the court is to have regard to any representations that the parties have made on the issue of participation via television link, as well as the interests of justice.
New section 288J(1), as inserted by section 86(1) of the bill, provides that the Lord Justice General may, by directions, specify types of hearing in which a detained person may participate by live television link. Such directions may specify types of hearing by reference to the venues at which they take place, particular places of detention or categories of cases or proceedings to which they relate. Does the committee agree to ask the Scottish Government why it is considered appropriate for the power in section 86(1) of the bill to be exercisable by directions that will not be subject to any level of parliamentary scrutiny?
Members indicated agreement.
I am certainly content to ask the Government that question. However, we should also ask the Government whether, if it concludes that there should be no parliamentary process—we are, after all, talking about rules of court—it should consider some provision to ensure that the directions are at the very least published and available for scrutiny.
Is the committee content with that suggestion?
Members indicated agreement.
Part 6 of the bill establishes the Police Negotiating Board for Scotland. It is being set up in response to the UK Government’s forthcoming abolition of the Police Negotiating Board, which operates on a UK-wide basis and makes representations to the UK and Scottish Governments in respect of police hours of duty, leave, pay and allowances, pensions and uniforms.
Section 87 of the bill inserts a new schedule 2A into the Police and Fire Reform (Scotland) Act 2012 to make provision for the new PNBS’s status, chairing and membership, disqualification and remuneration and expenses. Under paragraph 4(1) of new schedule 2A, it will be for the Scottish ministers to prepare the PNBS’s constitution and, under paragraph 4(2), the constitution must regulate the procedure for the PNBS to reach agreement on its representations to the Scottish ministers. Paragraph 4(3) lists a number of matters to which the PNBS’s constitution, as prepared by the Scottish ministers, may refer, including membership, internal organisation and procedures. As the power to prescribe the PNBS’s constitution is not to be exercisable through the making of subordinate legislation, the constitution, once prepared, will not be subject to parliamentary scrutiny of any kind. Does the committee agree to ask the Scottish Government why it is considered appropriate that the power to prepare the PNBS’s constitution is not to be exercisable through the making of subordinate legislation and therefore subject to parliamentary scrutiny?
Members indicated agreement.
Does the committee also agree to ask the Scottish Government how it intends that power to be exercised and what matters, in addition to those already prescribed in new schedule 2A to the Police and Fire Reform (Scotland) Act 2012, are to be addressed in the PNBS’s constitution?
Members indicated agreement.