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Agenda item 5 is consideration of the powers to make subordinate legislation that are conferred on the Scottish ministers by the Serious Crime Bill, which is United Kingdom legislation. The briefing paper that has been provided suggests that the committee could seek a written explanation of matters relating to clause 19, and the committee would then consider the response at next week’s meeting, with the intention of agreeing a draft report.
Clause 19 of the bill amends section 118 of the Proceeds of Crime Act 2002 in relation to the enforcement of confiscation orders, which are imposed to enable the recovery of criminal assets following a person’s conviction. Some individuals choose not to pay their confiscation orders and instead serve a period of imprisonment, known as a default sentence. Clause 19 provides for a new sliding scale of default sentences that will be applicable to confiscation orders in Scotland and which mirrors the scale that the bill will introduce in England and Wales. The scale provides for maximum periods of imprisonment of six months, five years, seven years and 14 years, depending on the value of the compensation order that has been imposed.
Proposed new section 118(2B) of the 2002 act, as inserted by clause 19, confers power on the Scottish ministers to amend the sliding scale
“so as to remove, alter or replace any entry ... or to add any entry”.
Accordingly, the Scottish ministers will have the power, through subordinate legislation, to vary the maximum term of imprisonment that might be imposed in respect of a confiscation order of any amount. Clause 10 of the bill confers a similar power on the secretary of state in respect of the scale that applies in England and Wales.
Proposed new section 118(2B) also confers power on the Scottish ministers
“to provide for minimum periods of imprisonment in respect of amounts ordered to be paid under a confiscation order”
and to
“apply (with or without modifications) any provision of”
the Criminal Procedure (Scotland) Act 1995
“relating to enforcement of fines in consequence of exercising”
either that power or the power to amend the sliding scale referred to above. All three powers are subject to the affirmative procedure.
Does the committee agree to ask the Scottish Government why it has been considered appropriate for the Scottish ministers to have an unlimited power to vary through subordinate legislation the maximum periods of imprisonment provided for in the bill that may be imposed in respect of amounts to be paid under a confiscation order, rather than the maximum periods being determined or varied by Parliament and set out in primary legislation, and why it has been considered appropriate for the minimum period of imprisonment imposed in respect of amounts to be paid under a confiscation order to be subject to determination by the Scottish ministers through subordinate legislation, rather than its being determined by Parliament and set out in primary legislation?
Members indicated agreement.
Unless anyone has any other comments, that brings us to the end of the agenda.
Meeting closed at 11:49.