Victims and Witnesses (Scotland) Bill: Stage 1
Under agenda item 4 we will consider the delegated powers in the Victims and Witnesses (Scotland) Bill.
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 be raised in correspondence. The committee expects to consider a draft report, based on the responses received, at its meeting on 19 March.
Section 271H(1) of the Criminal Procedure (Scotland) Act 1995 specifies a range of special measures that may be used to assist vulnerable witnesses to give their evidence to the court. Section 8(a) of the bill amends the definition of “standard” special measures.
Section 8(b) inserts new section 271A(15) into the 1995 act. That new section allows ministers to modify section 271A(14), which sets out the standard special measures, so as to add new ones or amend or delete the existing ones. It also enables the modification of the procedures for use of those measures, in consequence of a change to the measures.
Does the committee agree to ask the Scottish Government whether the power in section 8(b) could be drawn more narrowly to allow for the updating of or addition to the current list of standard special measures for vulnerable witnesses contained in section 271A(14) of the 1995 act, rather than enabling the removal of a measure currently listed; and, alternatively, if the power to remove any measure currently listed is required in consequence of the updating of or addition to the measures, whether the power could reflect that?
Members indicated agreement.
As with the previous power considered, section 271H(1) of the 1995 act specifies a range of six special measures that may be used to assist vulnerable witnesses to give their evidence to the court. Section 17(b) of the bill will allow the Scottish ministers to add new special measures to section 271H(1) or to amend or delete existing special measures and modify the procedures for the use of a special measure in consequence.
Does the committee agree to ask the Government whether the power in section 17(b) could be drawn more narrowly to allow for the updating of or addition to the current list of special measures for vulnerable witnesses set out in section 271H(1) of the 1995 act, rather than enabling the removal of a measure currently listed; and, alternatively, if the power to remove any measure currently listed is required in consequence of the updating of or addition to the measures, whether the power could reflect that?
Members indicated agreement.
Section 21 provides that instead of or in addition to any sentence for the offence that the court can currently pass, the court may order a person convicted of assaulting or impeding police officers or police staff to pay a sum under a “restitution order” made by the court.
Section 21 of the bill inserts new section 253A into the 1995 act. Does the committee agree to ask the Scottish Government why it is proposed that the power in new section 253A(3) to vary the maximum amount of restitution payment that may be ordered by the court should be exercisable in the form of regulations rather than by order, given that an order is the usual form used to prescribe the level of maximum amount, without other substantive provisions?
Members indicated agreement.
In connection with restitution order payments mentioned in the previous power, any amounts are to be paid to the Scottish ministers. Ministers shall establish and maintain a restitution fund to secure the provision of support services for persons who have been victims of a police assault. New section 253B(6) allows the Scottish ministers to make further provision about the fund, including in connection with its operation, administration, records and reports to the Scottish Government.
The delegated powers memorandum indicates in paragraph 65 that there could be a requirement in future to exercise the powers to make urgent changes in the operation or administration of the restitution fund. In that case, could the application of the affirmative procedure raise any difficulties, for instance if the changes required to be approved urgently by the Parliament during the summer recess? If the emergency affirmative procedure was applied to the exercise of the power to make orders, could that resolve any such difficulties? Does the committee agree to ask the Scottish Government for an explanation of those issues?
On restitution payments, if courts are imposing an additional fine and that goes into the Scottish treasury—almost—is that not a conflict of interest?
That is an interesting question. I am not so sure that the courts regard themselves as the defenders of the Scottish treasury and I think that the fund is in effect a trust fund. I suggest that that matter is for the committee that considers the policy, rather than for us. The legal advisers seem to agree with that view.
Our briefing does say:
“Any payment out of the fund can only be made to a person who provides or secures the provision of support services for such victims.”
Which the Government pays for.
Which the restitution fund pays for.
Surely the Government manages it.
No. The money comes from person “P”—as it says in the bill—who is the person who has been found guilty. It is put in the restitution fund and the restitution fund pays money to people who provide or secure the provision of support services for victims. The Government neither contributes to it nor takes from it. That is my understanding, but I am happy to hear another view.
I have just raised an issue—
It sounds as if it is a policy issue rather than a subordinate legislation issue.
I am quite clear that it is a policy issue, and I will have no difficulty in ruling that that is the case if I have to, but the more important thing is that Hanzala Malik may well have a point, in the sense that the restitution fund might make moneys from criminals available to do things that Government funds might otherwise do. That is inevitably the case.
That is fair.
I just wanted to draw attention to that.
Thank you.
Section 22 makes significant provision to establish a victim surcharge and a victim surcharge fund. That is achieved by adding into the 1995 act sections 253F to 253J. The court must impose a victim surcharge on offenders who are subject to any sentence that is prescribed by the Scottish ministers in regulations that are made under this section, except when a restitution order under section 21 is imposed.
In relation to the delegated powers in section 22, which inserts new section 253F into the 1995 act, does the committee agree to ask the Scottish Government why it is considered necessary or appropriate that the scope of the powers in new subsections 253F(2) and (5) is wide enough to enable any level of victim surcharge amounts to be prescribed to be payable by different descriptions of offender, or different circumstances, without any maximum or initial maximum amounts being prescribed by the bill?
Does the committee agree to ask the Scottish Government to consider whether the scope of the powers could be drawn more narrowly, to reflect the initial policy intentions? In explaining those policy intentions, the DPM says:
“the Scottish Government intends to impose the surcharge on those sentenced to a court fine in the first instance and to set out a tiered scale of surcharge amounts, linked to the amount of the fine.”
Given that statement in the DPM, it is noted that further consideration will be required in advance of putting the proposed details into regulations, and it is assumed that consultation will be needed with the appropriate persons and bodies on those details. Therefore, does the committee agree to ask the Scottish Government to consider whether section 22 should be amended to include a requirement for the Scottish ministers to consult appropriate persons and bodies that have an interest in the regulations under the section before they are made? Is the committee so minded?
Members indicated agreement.
Section 27(2) inserts schedule 1A into the Mental Health (Care and Treatment) (Scotland) Act 2003. Schedule 1A makes further provision in relation to the national confidential forum. It is inserted into the 2003 act because the forum is to operate as part of the Mental Welfare Commission for Scotland, provision in respect of which is set out in that act.
In relation to the power that is contained in section 27(2), which inserts subparagraph (3) of paragraph 7 of schedule 1A to the 2003 act, does the committee agree to ask the Scottish Government whether it is intended that the Scottish ministers will be under a duty to make an order under that subparagraph or whether they will have the discretion to do so; and, accordingly, to consider whether that should be made clearer?
Members indicated agreement.
Sections 1 to 5, 6(b), 8(b), 17 and 24(d) of the bill have varying drafting methods for the powers to modify the list of persons and so on that are contained in each section, which are either of the form, “the Scottish Ministers may by order/regulations modify subsection (X),” or—for example—“the Scottish Ministers may by order/regulations modify the definition of ‘qualifying person’ in subsection (X).”
Does the committee agree to ask for an explanation of a matter that applies generally to the powers that are contained in sections 1 to 5, 6(b), 8(b), 17 and 24(d)? That matter is that each of those sections contains powers to modify a list of persons, types of information and so on that are provided for in a particular subsection. In some sections, the power is drafted as a power to modify the definition or description of “qualifying person”—for example—in the relevant subsection. In others, the power is framed simply as a power to modify the subsection—for example, in section 2(4). The committee notes that section 3(2) of the Water Resources (Scotland) Bill as amended at stage 2 specifies that the Scottish ministers may by regulations modify the list in subsection (1) by adding a public body or by updating or removing an entry.
Could a consistent drafting method be used in the sections of the bill that have been referred to, to make it clear that the power is a power to modify a list of persons in the relevant subsection and to specify how the modification can be done?
Members indicated agreement.
11:00
It is all about clarity of drafting.
The general provisions in sections 28 to 30 come into force on the day after royal assent. There is also a usual power to bring into force the other provisions of the bill on days that will be appointed by order. Section 30(3) proposes that a commencement order may contain transitory, transitional or saving provisions. No parliamentary procedure will attach to such provisions, apart from the laying of the order and consideration by the committee.
In relation to the power in section 30(3) to make transitional, transitory or saving provisions in a commencement order, does the committee agree to ask for further explanation of why it has been considered appropriate that no parliamentary procedure will apply to the making of such provisions? In particular, the bill makes a complex series of amendments to various provisions of the 1995 act in relation to court procedures in the interests of vulnerable witnesses. It may be assumed that any such ancillary provisions that are added to a commencement order could be complex or could have significant implications for the persons affected by them.
Does the committee agree to ask the Scottish Government to consider whether the negative procedure could be more suitable for scrutiny of ancillary provisions that are added to a commencement order, given that that would be consistent with the application of the negative procedure to the ancillary powers in section 29?
It might be worth adding that that is a subject that we have considered relatively recently. We take fright at the idea of such orders just being laid. Do members agree that we should ask the Government those questions and bring that issue to its attention?
Members indicated agreement.