Subordinate Legislation Committee,

Meeting date: Tuesday, May 26, 2009

Official Report 87KB pdf

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Criminal Justice and Licensing (Scotland) Bill: Stage 1

Item 2 is consideration of the delegated powers memorandum to the Criminal Justice and Licensing (Scotland) Bill. We considered the delegated powers in the bill at our meeting of 28 April and disposed of a number of powers with which we were content. However, we had a number of questions, which we put to the Government. We have before us the Government's response, which I will go through bit by bit.

The first provision is section 14, "Community payback orders", so far as it inserts in the Criminal Procedure (Scotland) Act 1995 new section 227I(6), which gives the Scottish ministers the power to vary the minimum and maximum hours of unpaid work or other activity requirement. Are we content to report to the lead committee that we welcome the Government's confirmation in its response that it will lodge amendments at stage 2 to provide limits to the extent to which the minimum and maximum number of hours stated in section 227I(3) can be varied and the extent to which the figure of "100" in sections 227I(4) and (5) can be varied?

Members indicated agreement.

We seem to have achieved something there.

Section 14 inserts in the 1995 act new section 227K(3), which provides for the power to vary the limits of the balance of activity within the unpaid work or other activity requirement. Are we content to report to the lead committee that we welcome the Government's confirmation that it will lodge amendments at stage 2 to vary the powers as drafted in new section 227K(3)? We understand that to mean that, instead of the power permitting the amendment of subsection (2) in any respect, it will be a power to specify different figures in subsection (2)(a) or (b). The response also confirms that the stage 2 amendments will provide for the application of affirmative resolution procedure rather than negative procedure.

Members indicated agreement.

Section 14 inserts in the 1995 act section 227ZB(12), which provides for the power to vary the maximum number of months in which a restricted movement requirement can have effect. Are we content to report to the lead committee that we welcome the Government's confirmation that it will lodge amendments at stage 2 to address the issue raised in the committee's question on that power? The amendments will provide for a single overall maximum period of 12 months for a restricted movement requirement, subject to the ability to modify that period by affirmative regulations.

Members indicated agreement.

We have achieved something again.

Section 18(2)(a)(iii) provides for the power to prescribe by order the "prescribed period" for the purposes of certain sentences under part 2 of the Custodial Sentences and Weapons (Scotland) Act 2007. First, are we content to report that the Government has indicated in its response that it will reconsider whether the power requires to be taken to prescribe any new period of custody, instead of 15 days, for the purposes of the section, and will consider whether the scope of the power could be narrowed by setting minimum or maximum limits? Secondly, are we content to draw our questions and the Government responses on the scope of and reasons for the delegated power to the attention of the lead committee, in connection with its consideration of the bill? Finally, are we content that the power should be subject to affirmative resolution procedure?

Members indicated agreement.

Paragraphs 10(3) and (4) of schedule 2 provide for the power to prescribe the length of periods of detention for those under 21 years of age, for the purpose of determining whether they are serving

"short-term custody and community sentences"

or "custody and community sentences". First, are we content to report that the Government has indicated in its response that it will reconsider whether the power requires to be taken to prescribe any new period of custody, instead of 15 days, for the purposes of section 55 of the 2007 act, and will consider whether the scope of the power could be narrowed by setting minimum or maximum limits? Secondly, are we content to draw our questions and the Government's responses on the scope of and reasons for the delegated power to the lead committee, in connection with its consideration of the bill? Finally, are we content that the power should be subject to affirmative resolution procedure?

Members indicated agreement.

Section 70(3) inserts in the Public Finance and Accountability (Scotland) Act 2000 new section 26G(1), on persons mentioned in the act. Is the committee content to take the view that, having obtained further explanation and justification from the Government, we may find the proposed power to be acceptable in principle and that it should be subject to negative resolution procedure?

Members indicated agreement.

Section 82(1)(a) amends section 133 of the Criminal Justice Act 1988 and gives the Scottish ministers the power to specify further circumstances in respect of which compensation may be paid. Are we content to draw to the attention of the lead committee and Parliament that the proposed power goes beyond what is strictly necessary to achieve the objective that is stated in the Scottish Government's delegated powers memorandum—namely, to put the ex gratia scheme on a statutory basis—and that, in our opinion, the Scottish Government has given no adequate justification for the power to extend the scheme beyond that currently operating?

Members indicated agreement.

Section 82(1)(d) inserts in the 1988 act new section 133(4B), on guidance to assessors. Are we content to note the Scottish Government's commitment that any guidance issued under the power will be laid before the Parliament? Do we find the proposed power acceptable in principle and agree that it should be subject to no parliamentary procedure?

Members indicated agreement.

Section 115 deals with the power to establish rules of court in relation to part 6 of the bill. Are we content to draw the breadth and scope of the proposed power to the attention of the lead committee and the Parliament? Do we also wish to report that we consider that the Scottish Government has given insufficient justification for the need for a power in these terms or for why the scope of the proposed power should not be limited to matters of criminal practice or procedure or other matters within the remit of the High Court, given that the power is not subject to parliamentary procedure?

Members indicated agreement.

Section 121(3) gives the Scottish ministers the power to set mandatory conditions to licences granted under the Civic Government (Scotland) Act 1982. Are we content to report to the lead committee that we welcome the Government's undertaking to lodge an amendment at stage 2 that will require the power to set mandatory conditions in respect of licences under the 1982 act to be subject to affirmative procedure?

Members indicated agreement.

We will chalk that up as another give in our direction.

Section 129(4) inserts in the Licensing (Scotland) Act 2005 new section 27A, which provides for the power to prescribe those areas in respect of which licensing boards may vary all or a particular group of premises licences' conditions of operation. Are we content to draw the attention of the lead committee to the Government's confirmation that it intends to remove section 129 at stage 2?

Members indicated agreement.

Section 140(1) gives the Scottish ministers the power to make provision for the imposition of a social responsibility levy on relevant licence holders. Are we content to draw the attention of the lead committee to the Government's confirmation that it intends to remove the section at stage 2?

Members indicated agreement.

Sections 146 and 147 deal with ancillary provision. First, are we content to report that we welcome the Government's undertaking to amend section 146 to provide that any modification of enactments is subject to affirmative procedure? Secondly, are we content to report that we accept section 147 and that only textual amendments should be subject to affirmative procedure, but on the understanding that we expect the Government to bring forward measures in a form that attracts affirmative procedure when those measures impact on individuals' rights or liberty?

Members indicated agreement.

We have made a great deal of progress. We should congratulate the members of our legal team, who have been responsible for many beneficial comments that have improved the law.

We can crystallise around that comment.

I wanted the point to be made on the record.

We should congratulate the clerks, too, as it has been a joint effort.

And everyone else.

Steady on—we will be congratulating The Daily Telegraph if we are not careful. There are limits, you know.